The Ninth BAILII Sir Henry Brooke Lecture: ACCESS TO JUSTICE: RETHINKING THE FRAMEWORK

The Ninth BAILII Sir Henry Brooke Lecture
hosted by: Allen & Overy LLP

title: Access To Justice: Rethinking The Framework
given by:Sir Ross Cranston.^[1], Professor of Law at the London School of Economics and Political Science and a previous chair of BAILII's Board
on: 12 October 202
Introduced and chaired by: Guy Beringer KC (Hon) - Chair of BAILII Trustees

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Presentation slides / Video at YouTube – note that there is a syncing issue later in the video. An updated video will be posted shortly.

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ACCESS TO JUSTICE: RETHINKING THE FRAMEWORK

Sir Henry Brooke Lecture, 12 October 2023

I INTRODUCTION

1. I was privileged to chair the BAILII trustees for 5 years until last year. It was not always a smooth journey for us during that time.
2. One difficulty was that some seemed not to grasp our mission. An example was the criticism about coverage. The reality was that BAILII had been established with judicial support and undertook to publish what judges thought worthy of publication and therefore sent us - no more, no less.
3. Then there has been the almost exclusive focus on the case law BAILII publishes for England and Wales. But BAILII is the British and Irish Legal Information Institute covering, not only England and Wales, but also Scotland, Northern Ireland, and Eire. If you look at the home page you see how BAILII stretches this to include the Channel Isles, the three courts in the Gulf applying English law principles, the Cayman Islands, the European Court of Human Rights, and the Court of Justice of the European Union.
4. On the home page you can also access legal material from countries of the Commonwealth and beyond.
5. As well as case law and legislation there is Bailii Openlaw, designed for students. As well there is a rich seam of reports from law reform bodies, tribunal determinations, and historical material – to take one example, Morison's Dictionary of Decisions (Court of Session) 1540-1808.
6. In short, as Lord Burnett, the then Lord Chief Justice said in the 5th Sir Henry Brooke lecture, Bailii "provides an easy to use facility for lawyers and public alike to find judgments and legislation from the United Kingdom, and elsewhere, instantly and at no charge. It contributes to an understanding of our laws and to access to justice."
7. Access to justice is my theme this evening, in particular facilitating access to justice for those with civil law claims who face blockages through a lack of resources or otherwise. Much work has been done to map these blockages. I must pay tribute to my good friend of half a century, Dame Hazel Genn, and her pioneering work in the area.
8. Access to justice is a broad canvass. In thinking about it we need to appreciate that. A great deal of the debate about the subject focuses on access to the courts and the public funding of lawyers, notably through legal aid.
9. Now don't misunderstand my message this evening. Both courts and public funding are crucial.
10. And let me say at this point that the reduction over time of the civil legal aid budget, has been dramatic (to put it no higher), with legal aid practices closing and lawyers leaving.
11. My message is rather this. Putting the courts or legal aid, or even other matters like litigation funding, centre stage can be misleading since it may mean misreading the wider canvass, as well as the potential of other methods of access to justice.
12. It may also ignore the reality that public resources are limited - there are many demands on the public purse. The case for public funding for access to justice must be made vis-à-vis other public services. In the public mind the claims for their budgets may rank equally, if not higher, than those for courts and lawyers.
13. Let me outline how I intend to proceed.
14. First, I'll say something about the justifications for access to justice. This is necessary since there are some who argue that there is too much access to justice, that we need to choke off litigation since it fosters a compensation culture or alternatively gets in the way of business.
15. Secondly, I'll sketch some important privately funded avenues for access to justice. Some of these, like before and after the event legal expenses insurance, are well established. Others like litigation funding are relatively new arrivals.
16. Finally, I'll say something about public provision for access to justice, including how public funding can be justified vis-à-vis other claims on the Exchequer and the related need to tackle priorities.

II REASONS FOR ACCESS TO JUSTICE

17. So my first topic is the justifications for access to justice.
18. In my view these can be boiled down to four.
19. First, meeting legal needs - the legal needs of individuals to be sure, but also those of commercial and other entities, especially SMEs.
20. A key point here is that legal needs are not necessarily problems taken to lawyers or those which end up in courts. Certain legal problems are not taken to lawyers because those with the problems do not recognise their legal dimension, because lawyers are not geared up to meeting them, or because the view is taken that there are other ways of addressing them, including ignoring them.
21. Depending on the circumstances legal needs need not necessarily be met by lawyers and courts.
22. A theme of my recent book, Making Commercial Law through Practice 1830-1970, was precisely that: English commercial law during that period was made, in large part, by the practices of the international merchant communities in London and Liverpool, with only occasional contact with lawyers and courts. It is a complex story, but one advantage, certainly in London, was the institutional clustering – commodity and capital markets, banking and finance, insurance, shipping, all concentrated close by to where we are this evening - so that the whole was greater than the parts.
23. Likewise, in the present day there may be other avenues for addressing and resolving legal needs – in the commercial field arbitration looms large, and in commodities arbitration lawyers are not prominent.
24. Protecting rights is a second justification for access to justice - fundamental and human rights to be sure, but also contractual and property rights, including intellectual property rights. An aspect of this second justification, and essential to the rule of law, is keeping the executive power in check. Rights must also be enforceable against commercial institutions and individuals.
25. Thirdly, there is equality before the law, which cannot exist without access to justice. A crucial point here is that a system of civil justice must be judged by the way it treats those at the bottom of society. In other words, the concern is not simply with access to justice but with equal access to justice.
26. A fourth justification for access to justice is utilitarian.
27. A long-held view of bodies like the World Bank is that economic development is associated with access to independent and reputable judges dedicated to the rule of law and able to uphold contract and property rights.
28. In its "2030 Agenda for Sustainable Development" the United Nations links, in Goal 16, QUOTE "the provision of access to justice for all" with poverty reduction, realising human rights, and inclusive institutions and sustainable growth.
29. In its international work to promote the rule of law and access to justice, the Judiciary of England and Wales provides judicial training and assistance through the Judicial College, especially in the Commonwealth, as well as capacity building for commercial courts through the Standing International Forum of Commercial Courts. SIFoCC was the brainchild of Lord Thomas of Cwmgiedd when he was Lord Chief Justice. It now includes the judiciaries of most G20 countries, as well as judiciaries from Africa, Asia, and the Caribbean.
30. Another facet of the utilitarian justification for access to justice it that it can improve the lives of many in Britain by resolving social problems before they escalate. If a lawyer or paralegal can persuade an education authority to offer support to a child with special needs that may prevent a cycle of decline in her own life and that of her family; if domestic violence is addressed in its early stages that may ward off a range of serious consequences for relationships and children; if a paralegal or lawyer can ensure that social welfare benefits are properly paid, that may avoid housing eviction or uncontrollable debt; and so on.
31. So those, in outline, are four justifications for access to justice.

III FACILITATING PRIVATE PROVISION

32. Let me turn to my second topic, private provision for access to justice and how this can be boosted.
33. I canvass avenues of private provision relevant to the general population and SMEs. In this regard large commercial and public organisations, and the very wealthy, can generally fend for themselves.
34. I begin with insurance, which I have already mentioned. Then there are the specific sources of funding for access to justice - litigation funding, crowd funding, and client loan schemes. Finally, there are the non-curial channels such as Ombudsman services and the free ADR schemes for consumers, funded by business, and covering vehicles, travel and holidays, retail, utilities, and so on.

Legal expenses insurance

35. So first, insurance, and I'll concentrate on before the event legal expenses insurance, rather than after the event insurance.
36. Before the event ("BTE") insurance taken out against the risk of needing to take legal action or alternatively becoming liable to a legal claim has long operated in Germany and has been successfully encouraged in other European countries like Sweden where, as in Britain, legal aid at generous levels is no more.
37. BTE insurance is available in Britain as a bundled product or as an add-on at a relatively low premium with motor vehicle and house insurance policies or as part of a bank account.
38. The add-on to household insurance may provide cover for employment, consumer or property disputes, and some personal injury claims. It will probably extend to family members.
39. Business associations such as the Federation of Small Businesses, professional associations, and trade unions may also offer legal expenses insurance, or its equivalent, as a benefit of membership.
40. Stand-alone BTE insurance in Britain is mainly confined to commercial policies available to cover SMEs with employment disputes, tax investigations, and the like.
41. In 2017 the Civil Justice Council published an exhaustive report by a working group chaired by Professor Rachael Mulheron, with membership from insurers and lawyers involved in BTE insurance.
42. Amongst other things the report described an underappreciated aspect of BTE insurance, the legal advice helpline. One such helpline provides round the clock, free legal advice on a wide range of matters for those with cover.
43. Now there is a widespread ignorance by those with BTE insurance of its scope and of the services available.
44. There have also been issues with handling of some BTE claims, which has troubled the Financial Ombudsman Service.
45. But the real challenge is to promote reputable BTE insurance so that at least people are aware that they may have it, or that it may be worthwhile buying it as a relatively inexpensive add-on to essential insurance cover.
46. Clearly there are limits to BTE insurance. Many cannot afford household insurance or do not own a motor vehicle so will not get access to it that way. Add-on BTE insurance is out of reach.
47. However, BTE insurance could further access to justice for many, relatively cheaply. In my view there is a potential for refining and promoting it.

Private funding – litigation funding, crowd funding, client loan schemes

48. Let's now examine private funding sources for access to justice.
49. I mentioned litigation funding earlier. The first, and obvious point to make, is that this is now big business and is being used by large commercial parties, who could well fund litigation themselves. Law firms are accessing litigation funders on behalf of their clients.
50. But litigation funders have also made possible important consumer litigation. Large numbers of consumers and SMEs, for whom legal proceedings would otherwise be impossible on an individual basis, are making claims as part of a class or group.
51. The Mastercard litigation undertaken by Walter Merricks, formerly the Chief Financial Services Ombudsman, is a well-known illustration. Other litigation includes actions against Apple in relation to its App store, against some train operators for their ticket charging practices, against Sony for the pricing of its digital games and in-game content, and against against various truck manufacturers, such as Fiat and Daimler, over vehicle emission technologies.
52. In the recent Paccar judgment, the UK Supreme Court accepted that litigation funding played a valuable role in furthering access to justice, but held that the agreements pursuant to which that funding was provided (and where the success fee was calculated as a share of the financial benefit recovered) were damages-based agreements. The upshot is that many litigation funding agreements are potentially unenforceable as being non-compliant with the DBA legislation.
53. As ever with adverse court decisions, the agreements have been redrafted. So for future litigation funding, the Paccar problem is capable of being addressed. However, legislation may be needed for the issue Paccar raises for existing (and past) agreements.
54. Moreover, steps to ensure the proper regulation, or at least the self-regulation of the industry, need consideration.
55. Another private funding mechanism is crowd funding. It featured earlier this year when the All-Party Parliamentary Group on Fair Business Banking obtained permission to challenge the Financial Conduct Authority's response to the sale of interest rate hedging products to SMEs. Over £100,000 was raised through the Crowd Justice website in just over a month: [2023] EWHC 1662 (Admin), [8].
56. Other cases have been crowd funded - from judicial reviews launched by NGOs, like the Good Law Project, to environmental challenges.
57. Next, there are the litigation loans from specialist lenders or banks, which are now a feature, for example, of family litigation. Law firms put clients in contact with lenders so they can pay for their divorce. The lenders can take security over the existing assets.
58. Now each of these private sources for funding access to justice has its limits. Litigation funding has little purchase by an individual claimant in non-commercial litigation. Crowd funding by definition is around a popular cause. Client lending in divorce is irrelevant where no assets are at stake and the only disputed issue concerns the children.
59. But as with BTE insurance, these sources of private funding are part of the broad canvass of facilitating access to justice and should not be overlooked.

Ombudsman /ADR services

60. The same applies to non-curial methods of providing access to justice. Obvious ones for the general population which I've already mentioned are the Ombudsman and the business funded ADR services.
61. The latter have in effect replaced lawyers and courts in consumer–trader disputes and are doing so in the property sector as well. They investigate facts by engaging with both sides. That usually resolves most cases. Unlike the County Court the service is free. It can also be speedy.
62. Professor Chris Hodges, an expert on dispute resolution, notes that the leading consumer Ombudsman services receive as many, if not more contacts compared with all types of cases begun in the County Court.
63. As well as private ombudsman services for consumers there are the well-known public ombudsmen - the long established Parliamentary and Health Service Ombudsman, the Prisons and Probation Ombudsman, the Local Government and Social Care Ombudsman, and the Housing Ombudsman.

IV PUBLIC PROVISION FOR ACCESS TO JUSTICE

64. That mention of publicly funded Ombudsmen leads to my third topic, public provision for access to justice.
65. I touch on three areas here, beginning with the machinery of justice, before turning to procedural reform and then, finally, to public funding for legal services.

The machinery of justice

66. The machinery of justice. Earlier this year Sir Geoffrey Vos, the Master of the Rolls and Head of Civil Justice, outlined how the Online Procedure Rules Committee, established under the Judicial Review and Courts Act 2022, is overseeing the court-based dispute resolution processes currently being fashioned. That has seen the roll out of Online Civil Money Claims for debt claims and Damages Claims Online for injury claims.
67. Along with digital pre-action portals and other processes, Sir Geoffrey's vision is that when fully operational the reform programme should resolve many thousands of disputes every year without the parties going to court. The first tier may result in referring a consumer to an Ombudsman service or an employee to ACAS. The second tier concerns pre-action dispute resolution services and portals. The idea is that the digital justice system will provide architectural coherence and integration.
68. So these reforms in the civil justice machinery, using modern technology, will further access to justice, publicly funded but not necessarily involving the courts.

Procedural measures

69. Secondly. procedural measures.
70. Earlier I mentioned group and class actions such as the Merricks litigation.
71. In England and Wales, we have multiparty litigation as well as the more traditional representative claim, through group litigation orders, GLOs, under CPR19.11. They were introduced following Lord Woolf's report on Access to Justice.
72. Comparable jurisdictions such as Canada and Australia have general class actions, which overcome some of the difficulties of GLOs.
73. That is because GLOs are opt in, rather than opt out. Opt in means the front end-loading of costs, to identify members of the GLO and to get them on the register.
74. A claim may be unlitigable under a GLO which generally requires a more significant loss per member to make it viable. Class members are immune from costs whereas rather complicated cost-sharing orders have been necessary to cover adverse costs with GLOs, usually via ATE insurance.
75. A financial services class action was part of the Bill which became the Financial Services Act 2010 but was dropped in the run up to the 2010 general election.
76. However, in 2015 the coalition government introduced class actions for damages claims before the Competition Appeals Tribunal. I have already mentioned some competition- based class actions.
77. So GLOs and class actions in the CAT have furthered access to justice. I simply note that reform of the GLO system and the issue of a general class action regime deserves revisiting.
78. There are other procedural innovations such as the well-known conditional fee agreement (the CFA) – the "no win no fee" agreement – as well as the damages-based agreement (DBA), where a claimant's solicitor is funded from a capped percentage of any damages received.
79. For personal injury claims, these developments – especially the CFA - have eased access to justice. Both offer costs protection for a claimant if unsuccessful.
80. Experience in the last decade suggests that the enabling legislation for both CFAs and DBAs needs some attention.
81. One-way cost shifting has been a popular idea for public law litigation, but unsurprisingly, as the target of most judicial reviews, governments of all political persuasions have been less than enthusiastic.
82. However, there has been an important innovation with costs capping.
83. In environmental litigation, which is fairly broadly defined, so-called Aarhus costs protection is standard. CPR45.43 caps adverse costs liability at £5,000 for individual claimants and £10,000 for NGOs and incorporated community groups. This ensures easier access to justice in environmental cases, especially when coupled with crowd funding.
84. Costs capping in other areas is highly unusual, given the high threshold set by the rules. That needs reconsidering.
85. Finally in the context of procedural changes I should mention the report by JUSTICE last October, Improving Access to Justice for Separating Families. It advanced a number of procedural changes such as the case progression officer to help a litigant in person with the steps required.

Public funding for legal services

86. I turn from these court-based measures to public funding for legal services.

Legal aid

87. Legal aid is the obvious place to start since historically it has been the preferred mechanism for publicly funded legal services. In the UK that has mainly involved private lawyers being paid to take on clients largely as if they were fee-paying.
88. Other countries adopted different models. In North America and Australia public funding for legal aid was augmented through taking interest on solicitors' client accounts for spending on legal assistance and legal education.
89. Moreover, employed lawyers featured more in the delivery of publicly funded legal services in Europe, North America, and Australasia. That course was open under our Legal Aid and Advice Act 1949, but was never implemented.
90. Over time there have been successive cuts to legal aid and its scope has been reduced and the eligibility criteria tightened. In 2012 legal aid provision was removed for important areas of civil law including family, employment, welfare benefits, immigration, and housing law.

Law and advice centres

91. Alongside legal aid has been the law centre movement.
92. The first law centre was established over 50 years ago, on American lines. My LSE colleague Professor Michael Zander has written about the battles which with the Law Society over the idea. At present the Law Centres Network has about 40 members, down from previous numbers.
93. As you know, law centres are based in local communities. Their funding has never been stable, coming from a mix of legal aid, local government, charitable and other sources.
94. While engaging in individual casework, for which there is an obvious demand, many law centres have also worked with community groups (tenants, residents, social welfare claimants, and employees) to try to effect more systemic changes.
95. Parallel to legal aid lawyers and law centres there are the advice centres, often charitable, sometimes with financial support from central or local government. They offer what is in effect legal advice and assistance, mainly by paralegals, who can be expert in their field. Much advice and assistance is provided online.
96. The best known is Citizens Advice, but there is also Shelter's online advice service in housing matters. Advice UK has some 800 members. It provides backup support to its network of independent advice organisations.
97. I should also mention LawWorks and Advocate, which offer pro bono legal advice, supported by the profession, including by law firms like Allen & Overy, our hosts this evening. As well there are the student staffed law clinics.
98. From early 2019 the Money and Pensions Service - sponsored by the Department of Work and Pensions - has provided debt and pension advice.
99. So there is a complex patchwork of centres, with both public and private funding, offering advice and assistance in areas such as welfare, consumer, employment, and housing law.

Justifying public funding for legal services

100. I want to return to two conceptual issues in the public funding of legal services.
101. The first is the one I've already identified, justifying public funding for legal services when resources are finite.
102. The plain fact is that not all legal rights can be vindicated, or every legal need met. There must be a balance struck between access to justice on the one hand and the available resources on the other.
103. The case for public funding for access to justice has to be made vis-a-vis other public services. The need for public expenditure in areas like health, education, transport, and security is evident to all. It is simply not realistic to expect spending on access to justice to be accepted without question. In the eyes of many in the general population, the claims of these other public services rank equally, if not higher.
104. What is required is that more attention be given to the calculation of the benefits and costs of publicly funded legal services and whether these match those from an equal allocation of public resources in other directions.
105. Some benefits from access to justice are easy enough to name -compensation for those suffering an accident, protection against domestic violence, a better environment in injuncting sources of pollution, an orderly distribution of assets on insolvency or death, making public policy effective, and the resolution of business disputes.
106. I have already mentioned the benefits of preventing social problems cascading and getting worse in the process.
107. Joseph Kelsen has recently prepared an economic analysis showing how benefits like these can exceed the costs.
108. More difficult to calculate but no less real is how access to justice assists in resolving conflicts, and in doing so assuages dissatisfaction with the operation of society and heading off the despair, cynicism, and conflict which might otherwise occur.
109. Further, and a point already mentioned, is that enforcing legal rights and duties can be functional for economic development as the World Bank and SIFoCC maintain.
110. These larger benefits merge into the more mundane ones of ensuring that the civil justice system works efficiently, illustrated by the common observation of judges that if many litigants in person were represented by lawyers the courts would operate more smoothly.

Setting priorities

111. Related to this first conceptual issue is a second - determining priorities in the allocation of the public moneys once they are available.
112. For many years with legal aid this was largely done implicitly, and without strategic vision. The money followed what lawyers did to the exclusion, for example, of social welfare law.
113. So at a general level determining priorities should be undertaken transparently, in a reflective manner, and taking account of changing circumstances.
114. Another dimension to determining priorities is ranking claims.
115. For less serious civil matters one may opt for queuing, as in the National Health Service, so that all claims are treated equally. But as in the NHS queuing may not be an appropriate course – for example, where a person's liberty, livelihood, or housing is under threat. Immediate assistance is generally required.
116. What about prioritising certain types of claim? For example Liz Davies KC makes a convincing case for housing legal aid. But with housing should legal aid be confined to tenants, or should it extend, say, to the elderly landlady with a difficult lodger? If it is limited to tenants, should it be extended to those who have a history of anti-social behaviour and who are being threatened with eviction because of it? Should test case or even group litigation be funded, or is the more effective approach working with housing providers?
117. Ranking claims presents intractable issues as this simple example demonstrates, but it must be tackled.

V CONCLUSION

118. Let me conclude. Access to justice is a broad canvass. I have suggested that overall it is a good thing both for both society and the economy.
119. I have also argued that for the general population there are a wide variety of ways of achieving it. Some do not involve public money. This is important since the halcyon days of demand-led expenditure on civil legal aid, and its generous coverage of a substantial section of the population, are behind us.
120. That does not mean we abandon making the case for public funding for legal services. But in a world of competing demands on the public purse, there needs to be a hard-headed calculation of costs, benefits, and priorities.
121. I have also counselled against assuming that immediate access to the courts and lawyers is always essential to achieving access to justice. For decades advice by paralegals in law and advice centres, and the success of Ombudsmen and ADR services, is direct evidence to the contrary.
122. Today there are as well digital pathways to legal advice and assistance, which may spiral with AI. One illustration is Sir Geoffrey Vos's future for dispute resolution processes.
123. Imposing intellectual order on all this is not easy. There is a need for a more strategic and integrated approach to access to justice taking private and public provision into account. I hope that this lecture is a contribution to that task.

Note 1   I'm grateful to Professor Rachael Mulheron for her assistance when preparing this lecture.    [Back]