Archaic Justice

In the first blog post for this site Sophie Khan, Solicitor Director and Chair of The Law Society’s Civil Justice Committee writes about her concerns about the cuts to costs and the implication this is having on upholding the rule of law.

Sophie Khan is also standing in The Law Society Elections for the Civil Litigation Seat https://www.lawsociety.org.uk/news/stories/agm-law-society-members-july-2018/ 

Archaic Justice

Since the beginning of April 2018, the Criminal Bar has been on strike, refusing to take on new publicly funded cases.  On 3 May 2018, the Criminal Bar Association, called for a 'no returns' policy, which was due to commence on 25 May 2018.  Last minute concessions made by the Lord Chancellor and the Ministry of Justice have seen a suspension until 12 June 2018 to allow for further talks to take place. 

The reason behind the direct action is the Ministry of Justice’s changes to the Advocates’ Graduated Fee Scheme (AGFS) which in real terms represents further cuts to the criminal advocates' income. Under the AGFS, solicitor-advocates and barristers will not be paid for all the reading and assessing of the disclosed material.  The Law Society, in December 2017, commenced judicial review proceedings against the Ministry of Justice in relation to the Litigators Graduated Fee Scheme. 

The Ministry of Justice’s response to the strike in the wake of the implementation of the AGFS scheme is that “our reforms will reflect the actual work done in court, representing better value for the taxpayer, and will replace an archaic scheme under which barristers were able to bill by pages of evidence.”

The number of chambers who have joined the direct action is now about 100.  This has resulted in part, to Lady Justice Macur, the senior presiding judge for England and Wales issuing guidance to judges in the Crown Courts on the ‘Advocates Graduated Fee Scheme Dispute’.   If the ‘no returns’ policy is implemented in two weeks time, then it will be impossible for the criminal justice system to function and the archaic scheme that the Ministry of Justice so readily wants to replace with “no frails, no fuss”, is unlikely to materialise either.

It is not just criminal barristers who are suffering from the effects of the Ministry of Justice’s costs cutting exercise.  The Ministry of Justice has taken a similar stance towards costs reforms in civil litigation, especially in claims brought against insurance companies, travel agents and the NHS.  It is only recently, that the Civil Procedure Rules Committee updated the CPR to include holiday illness claims under the “fixed fee” regime.

If the claim is settled:

Claims where the damages value is between £1,000.00 to £5,000.00 – Fixed Costs of £950.00 plus 17.5% of the damages;
       

     Claims where the damages value is between £5,000.00 to £10,000.00 – Fixed Costs of £1,855.00 plus 10% of the damages over £5,000.00;
         

     Claims were the damages value exceeds £10,000.00 – Fixed Costs of £2,370.00 and 10% of damages over £10,000.00.

If the claim proceeds to trial and the Claimant wins, the Claimant’s costs are fixed at £3,790.00 plus 27.5% of the damages agreed or awarded and the trial advocacy fee – between £500.00 to £1,710.00 plus VAT.

A similar “fixed fee” regime, Fixed Recoverable Costs (FRC) is soon to be imposed on clinical negligence claims where the value of the claim is under £25,000.00 or less.  The FRC was a recommendation of the now retired Lord Justice Jackson and it was announced by the Civil Justice Council, in March 2018, that the Clinical Negligence Fixed Costs Working Group has been set up and is to draw up (i) a structure for FRC for such cases to attach to the new process, (ii) figures for FRC in the proposed structure, and (iii) figures for the cost of expert reports.

The first meeting of the working group took place on 23 April 2018 and is to report back by the end of September 2018.  It is unlikely that the working group will be able to report back so soon, but the message is clear, that whenever the working group does report back it will bring in cuts to the recoverability of costs. 

In the same way, that the criminal defence practitioners were part of the design of the AGFS, to give legitimacy to a new scheme, the participation of clinical negligence practitioners will be seen as an endorsement to FRC. 

Clinical negligence practitioners should be on their guard, and be mindful not to agree proposals which in the long term will have a detrimental impact on their ability to provide a service to the injured. 

If solicitors find it unviable to provide a legal service in a certain area of law, the ability to seek redress against wrongs will be curtailed and slowly, but surely, the specialist skills sets will be lost.

If you think that I am being over-pessimistic about the possible outcomes to costs reforms, then look no further than the results of the recent Civil Legal Aid Tenders.  The Legal Aid Agency is seeking additional services in seven family procurement areas where it received fewer than five compliant bids.  More shockingly, the agency is seeking additional services in 39 housing and debt procurement areas where it received one or no compliant bids and six immigration and asylum access points where it received one or no compliant bids.  The agency, is also seeking expressions of interest for housing possession services due to insufficient compliant bids in the Cromwell scheme area, and for discrimination services from 1 September 2018 through its mandatory telephone gateway following the aborted procurement, after again receiving insufficient compliant bids.

It is hoped that if there are to be any further cost reforms that these are considered against the backdrop of the sustainability of the legal services sector. The IRN survey on The UK Business Legal Services Market 2018, reports that UK-based business law firms and chambers generated revenues of £15.4 billion in 2017. 

If money talks, then instead of succumbing to the predictions of the death of lawyers, we should be resisting calls to overhaul a legal system which is widely regarded as one of the best in the world.