To people working in the Law, the Jackson review is big news. We’re not talking about Michael’s post mortem here, our Jackson is Rupert, and he is very much alive.
Lord Justice Jackson was commissioned in late 2008 to look into the way civil (i.e. not criminal) cases were funded. His remit took in two areas – the cost of litigation and access to justice.
In January 2010, Jackson LJ’s final report was published. Prelims and final together get towards the ‘small deciduous forest’ category of publications.
So we have a set of recommendations which the (or given current timings a future) government will look at and decide what to do with.
Over the next few weeks I’m going to look at some of the bits of Jackson, where the cure will be good, and where it may just kill the patient.
But first – week one – history.
Remember Legal Aid? In the 1940’s, while William Beveridge was tackling his 'giant evils', in a report that would lead to the NHS and the Welfare State, the lawyers were also busy. The Rushcliffe Report in May 1945 led to the enactment of the Legal Aid and Advice Act (1949).
The aim of the Act, which came into force on 30th July 1949, was that no-one should be ‘financially unable to prosecute a just and reasonable claim or defend a legal right’.
Now, it won’t surprise you to know that, despite this rapid legal action, it took a little longer for things to get going. Nevertheless, the ambit and effectiveness of Legal Aid grew over the next forty years. So, unsurprisingly, did the cost.
In an effort to rein in what was seen as vast expenditure (well if you think that was vast, wait to see what came next) the government, by means of the Courts and Legal Services Act 1990 allowed for Conditional Fee Agreements.
You’ve seen these on TV, in the middle of some crappy morning chav-fest, advertised as ‘no win-no fee’. You know you sneak a peak when you’re working from home. ADMIT IT!
The idea is economically simple. Let a lawyer charge a bit (technical legal term) more in case that she wins and she can afford to not charge people at all in cases where she loses. Allows access to law for good claims and cuts out Legal Aid at a stroke.
Of course, if you know your English legal system, you know that costs usually follow the event. This means that the loser usually pays most of the winner’s costs. So, it’s all very well not having to pay your own solicitor – you’ll just be bankrupted to pay the other side’s solicitor, barrister, expert etc.
Here it starts getting really odd, because someone came up with insurance for this, called After-the-Event or ATE. Now, if you know insurance you’re thinking ‘car, house – buy it in case the worst happens’. I know you’re not thinking ‘a good way of getting the better part of my holiday paid for when my dad’s Rolex is stolen, honest’ because you’re reading this blog, and not watching daytime TV. This insurance is that you know you’re injured, but Mr Insurer will pay the costs if you lose (and take a premium for his trouble). To me, whilst this may be called insurance, the word I’d use is gambling, but what do I know!
So, you get your solicitor on a CFA, you buy some ATE and sit back and let the case happen:
you lose – you pay nothing, walk away not exactly happy, but no poorer than you were.
you win – you get your damages, but you have to surrender part of it to pay the solicitor’s mark-up (the ‘levy’ to deal with the losers, and the ATE premium.
Now, some people don’t like this ‘deductions’ business – especially when Watchdog or its 1990’s equivalent gets wind of some poor sod being left with Bus Fare Home after everyone else has taken their share.
So, the system was changed to deal with this, and that’s where the whirlwind began. In the interests of suspense etc, I will be leaving that for the next instalment.
Monday, 22 February 2010
Tuesday, 2 February 2010
Papa Don't Preach
Pope Benedict XVI has opined on the undesirability of the Equality Bill currently before Parliament.
His Holiness is quoted as saying "…..the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs.”
The Equality Bill is not perfect, and the Lords Spiritual (one of the annoying anachronisms left after the botched House of Lords reform) are doing their best to put a spanner in its works. However there is a question of principle here.
We can have an equal society, and then seek to only derogate from this in extreme circumstances. Or, we can have an unequal society which enshrines the rights of certain special interests to have their views treated as superior to others. This would mean that Catholics would be allowed to restrict access to either adoption or the priesthood on grounds of sexual preference, as they have sought to do previously.
It is also however the start of a slope that leads to the assassination of doctors performing legal abortions, and the right to freedom of speech that is fundamentally racist in nature. I don’t think that the evidence of recent years suggests that the Catholic Church is a perfect moral compass by which we should all sail.
If some discrimination is allowed, as opposed to none, then we move to the thorny issue of who decides on what can or can’t be done. This will mean that permitted discrimination is based on human subjectivities and, worse, the efficiency of lobbying for various interest groups
In a better society, which discriminated on nothing beyond ability for the task, the Equality Bill would be unnecessary. I feel a little saddened that it is necessary to prevent by law behaviour which should be anathema to right-thinking individuals, but the case for a tightening of the law can be made out by countless examples of discriminatory behaviour.
I know that whilst this law will make discrimination harder from a legal position, it will still remain rooted in the minds of many people. In this the law is merely curing the symptom, not the disease, but then we have to start somewhere.
More next time on the Pontiff, his visit to Britain, and why it seems likely to cost the taxpayer £20 million. £20 million! You could fund NHS homeopathy for five years on that!
His Holiness is quoted as saying "…..the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs.”
The Equality Bill is not perfect, and the Lords Spiritual (one of the annoying anachronisms left after the botched House of Lords reform) are doing their best to put a spanner in its works. However there is a question of principle here.
We can have an equal society, and then seek to only derogate from this in extreme circumstances. Or, we can have an unequal society which enshrines the rights of certain special interests to have their views treated as superior to others. This would mean that Catholics would be allowed to restrict access to either adoption or the priesthood on grounds of sexual preference, as they have sought to do previously.
It is also however the start of a slope that leads to the assassination of doctors performing legal abortions, and the right to freedom of speech that is fundamentally racist in nature. I don’t think that the evidence of recent years suggests that the Catholic Church is a perfect moral compass by which we should all sail.
If some discrimination is allowed, as opposed to none, then we move to the thorny issue of who decides on what can or can’t be done. This will mean that permitted discrimination is based on human subjectivities and, worse, the efficiency of lobbying for various interest groups
In a better society, which discriminated on nothing beyond ability for the task, the Equality Bill would be unnecessary. I feel a little saddened that it is necessary to prevent by law behaviour which should be anathema to right-thinking individuals, but the case for a tightening of the law can be made out by countless examples of discriminatory behaviour.
I know that whilst this law will make discrimination harder from a legal position, it will still remain rooted in the minds of many people. In this the law is merely curing the symptom, not the disease, but then we have to start somewhere.
More next time on the Pontiff, his visit to Britain, and why it seems likely to cost the taxpayer £20 million. £20 million! You could fund NHS homeopathy for five years on that!
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