February 2, 2012
Litigation – the right or perhaps unaffordable luxury?
This week (Monday 30th January) Peers will talk about part 2 with the Legal Aid Sentencing and Punishment of Offenders Bill in the House of Lords. Included within part 2 are proposals that can prohibit the recoverability of ATE premiums.
This proposal will, In my opinion, make it even more complicated for SMEs, and private individuals, to litigate against better resourced opponents. Not only will this become an important deterrent to justified claims nevertheless it will also have a negative affect Treasury revenues.
When introducing the Bill in the House of Commons this past year, our creator Chancellor stated that “there is simply too much financial litigation“. This is as absurd because the Home Secretary saying “there is way too much policing”. The commercial and social wellbeing of a nation requires that the citizen can enforce the law for himself. The us government also claims that there is a deficiency of balance in the court system. I have faith that that precisely what is balanced or not will be based on upon the circumstances of the particular case and also the means of the parties.
However, whilst largely based upon an absolutely false view of the litigation landscape, the Government’s position is just not wholly without merit. It is the case that ATE insurance charges increase the price tag of litigation. It is also the situation which a well-funded party can nevertheless buy ATE insurance thereby impose increased pressure on his opponent who may already be weaker. It is however false that abolishing recoverable ATE premiums will restore balance because the government claims, neither can it be genuine that there’s a compensation culture exploited by irresponsible and dishonest claimants.
History has demonstrated it is challenging to cut the expense of English civil litigation. Many have tried without success. What is necessary is made for all of us to have the methods to deal with the price. What I suggest is that the balance must be achieved by the people useful for the purpose, namely the judiciary, not by legislative changes of omnibus, and thus necessarily unfair application.
I believe the answer is to permit ATE insurance with recoverable premiums where it is necessary to do so to avoid hardship.
Judges are already beginning look hard on the costs of litigation at the start of an instance – with cost estimates for your overall case now being commonly supplied in an early on of the proceedings. It would therefore be relatively simple for that judge to look at the ways of the parties and to authorise ATE insurance with recoverable premiums to redress the total amount where appropriate.
The opportunity may additionally be studied for judges to exercise their powers to cap costs in the beginning as to what they think are reasonable amounts. This would have been a balancing exercise at the beginning of the situation, avoiding the trials of economic strength which are a standard feature of modern English litigation.
The goal towards greater effectiveness and efficiency with the legal aid system is laudable, but a legal system it doesn’t help those invoved with have to get access to justice can be a system which will, ultimately, be less capable and expense more.
In a civilised society, access to justice will be the right of the citizen. It will not need to be coloured by political invective about “compensationitis”. Hopefully government entities thinks again, amends the check before it is too late, and retains the availability of ATE insurance for individuals who demand it.
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December 10, 2011
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September 7, 2011
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November 7, 2009
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