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Equality before the Law? Your Right to Justice in the UK, but only if you can afford the money. The Legal Profession badly needs to look in the Mirror
Guardian Headline “Top judge says justice system is now unaffordable to most”
I am going to explain here how it comes about in the UK that we have allowed the cost of going to Law deny the basic human right to Justice with Human Rights lawyers as bad as the rest. Maybe worse. They should care.
Why I can write this
First a degree in Jurisprudence at Oxford, then 3 years at the Bar in Manchester. When I moved from my Chambers in 25 Bow Lane Manchester to work alongside Douglas Robinson, the newly appointed Secretary of the Liberal Party at 58 Victoria Street in London (my naïve days), I took away with me two strong thoughts. First, keep everything in writing. Hence the dossier of over 100 pages in length I gave to Bindmans LLP as the basis for an action for judicial review against the Local Government Ombudsman. The other, stay as far away as possible from lawyers! They don’t come cheap.
Over the years, in my active working life, I have never been able to succeed with the second piece of advice to myself. Sometimes I have had value for money. Other times, not so; just gas meters ticking away presenting me with periodic bills. The legal profession is like any other. A mixed bag with 17 Legal Ombudsmen and their investigators manning the barricades, some working overtime at Christmas.
The root of the problem
There are two different legal systems – the “Adversarial” and the “Inquisitorial”. The adversarial is a contest with a judge presiding. The inquisitorial is investigative, with the judge in the lead role. The UK adopts the former. Europe the latter.
In the adversarial system money will always count. The scales will always be loaded against the small guy. The big guy can afford the best lawyers. The little guy may not afford a lawyer at all. The big guy can play for time with a three-way dialogue between client, solicitor, and barrister. They can keep the meter ticking for months with a negotiation continuing until 11.59pm. Don’t tell me that this isn’t what they do. They tried to do this once to me before I called it a day and paid them enough money to cover reading my instructions!
The argument in favour of this is that the judges don’t enter the sand in the arena, and you make your own case or defend it. But Sir James Mathew, an Irish judge at the turn of the 20th century, summed this up. He is said to have quipped that justice in England is open to all, “like the Ritz Hotel”.
As Legal Aid in criminal and civil cases is slashed and court fees are steeply increased in the pursuit of Austerity, the injustice gets worse. Increasingly people represent themselves and courts must cope.
I don’t know very much about the Inquisitorial System. At Oxford I was not encouraged to look! Roman Law was mandatory. Comparative Law was not even an option. You must understand: Roman Law posed no threat to a profession set in aspic.
Barristers & Solicitors
I’ll give you another example. Barristers and Solicitors. No-one at Oxford dreamed of asking whether you needed a divided profession. Yet, it puts up the cost to the litigant and makes justice less affordable. As dialogues between the parties generate it the meter ticks away, hundreds of pounds an hour, London prices.
Some years later while visiting the USA, one of the country’s most able trust-busting lawyers invited me to see his office in Manhattan. His firm was headed by Judge Rosenman, speech writer to Presidents Roosevelt and Truman and a leading American jurist, photos of them around the walls. It suddenly came home to me that you could manage very well without barristers and solicitors. You could safely avoid all the extra costs and delays that this imposed upon clients, not to mention that in the UK there is no guarantee who will ultimately represent you in court on the day. If your counsel is tied up with another case in another court, at the last minute the brief will be handed to someone you have never even met.
The other thing I noticed in the States. The UK could even save money on the cost of the horse hair wigs. Respect for lawyers did not need to depend on their attire.
The same shuteye also applies to disability tribunals. It is put about that these are informal and claimants don’t need legal advice. Ho! Ho! Their rulings are governed by regulations and legal precedent and often medical reports that cost money are critical. My partner, Ros, a much better lawyer than me – she secured a much more practical law degree in Newcastle to facilitate her voluntary work in the Tribunal Unit of Sunderland CAB until Sunderland Local Authority closed it down – will vouch for what I write here. Her legal knowhow helped many of her clients get thousands of pounds, many claims backdated, without which not so.
Equal rights in relation to colour, gender, race, religion,YES, but what about to Justice itself?
Yes, Human Rights lawyers fight individual cases, they oppose cuts to legal aid and the profession applauds their efforts; but they decline to confront the system of which they are a part when it is subject to serious criticism.
That is why Bindmans LLP, when given a choice between helping me to expose the LGO whitewash of Newcastle City Council’s plans for cycle lanes for non-existent cyclists and blocking it, chose to block it. A case would be “bound to fail”. They devalued their own reputation as they prejudged the response of the court to it. My 100 page dossier? 100 pages of nothingness! Clear evidence of bias totally ignored.
Back to my case against Bindmans LLP
And when I threaten to sue them in the small claims court to recover £2,500, they try to make it very expensive for me if I press on! When I advised Bindmans of my intention to do this, the reply did not come back from Bindmans. To my surprise it came back from another firm of solicitors altogether. KC, a solicitor with BLM, who described herself as a “file handler” said that Bindmans had hired them to contest my claim. They said that they would apply to transfer the case from the small claims court to the High Court.
I sent to BLM a Pre-action Protocol Letter detailing my claim. When I asked for an acknowledgement KC told me that she had three weeks to acknowledge the Letter and a further three months to reply to it. Solicitors are clearly a protected species.
You will find the ensuing email dialogue revealing.
“We acknowledge your Letter of Claim pursuant the Pre-Action Protocol for Professional Negligence dated 18 September 2017.
In accordance with the provisions of the Protocol we calculate that we have until 6 January 2018 to investigate the claim and provide you with a substantive response.
We note the contents of your covering email to the Letter of Claim. It is maintained that this matter is not suitable for the small claims track. However, ultimately it is a decision for the Court which track they allocate your claim to and is a standard question listed on the Directions Questionnaire which the Court sends out following receipt of the Defence. It is neither an abuse of the judicial process nor unusual for parties in the claim to request different tracks.”
This was my reply:
Thank you for your formal acknowledgement.
Your timetable is not a problem at all. Currently I am not well enough to proceed. I can actually use the period of my recovering to write, using my narrative in relation to Bindmans and Ombudsmen as an illustration. The subjects that come to mind are “Can the cost of Justice deny Justice?”, “The variability of standards in the legal profession” and “Are Solicitors a protected species?” Linkedin gives me a vehicle to carry my articles to opinion leaders even if the Media finds the subject overall too hot to handle.
As far as the second paragraph is concerned, in my view it damns Bindmans LPP and yourselves. The fact that a question is posed as to whether a case should be referred to a higher court does not mean that an affirmative answer is mandatory. It is a matter of choice. In this case I have simplified the issue – relying on just 2 paragraphs in Bindmans’ Advice not my 33 criticisms of it. And I have done my level best to try to head it off altogether by inviting Sir Geoffrey Bindman to mediate, but without any success. In my view Bindmans involving you instead of using their own team (and compromising you into the bargain) would be compounded by a referral to a higher court in an attempt to raise the stakes in a poker game they choose to play here. For the record – and for you relay to Bindmans – I give you formal notice that if you should apply to transfer this to a higher court when a lower court should be well able to resolve the matter I will apply for exemplary damages.
I await KC’s response with interest. Pity I may have to wait until January for it.
A Human Rights Paradox
Meanwhile, we have here a gigantic paradox. On the one hand Human Rights lawyers almost totally ignore the gross inequality of the right to justice in the UK but avail themselves of it when challenged. On the other hand, they assert the equality of human rights generally when sometimes human rights are not equal and absolute but different and in conflict with each other. When they are Parliamentarians they make a further mistake. They believe that all they need to do to correct social ills is to pass a law, create a new human right, throw money at it, and you have cracked it. Often, this make matters worse when they totally ignore human fallibility.
My suggestion for Oxford
All my writing on Special Educational Needs in Death of a Nightingale evidences that. In that instance it was made very much worse because a few ideologues* got their hands on the levers of power to create the right and then used the self-defence mechanism of the system itself to entrench it. Likewise in my recent posts with egocentric cyclists and their auto-phobic cycling lobby Sustrans.
Here’s my suggestion for Oxford. No more mock trials. How about pro bono work as part of a degree course. No better way for college dons and their students see the real world outside their ivory towers and make themselves useful. Seeing how the system works, or doesn’t, must be as good an introduction as any to a degree course entitled “Jurisprudence”. They might even get round to seeing that in the 21st Century judges must be more proactive. I read in the Times this week that only relatively recently have they started to read the papers relating to a case before the start of a case, not entirely to their liking. It may also dawn on the profession that having bewigged barristers and solicitors is a relic of a bygone age. Madame Tussauds stuff.
PS There is much I now criticise in the curriculum Oxford offered me. One thing I treasure – the lectures by the late, highly revered, Professor Herbert Hart. He explained that the word “Right” had many meanings, not one, depending on how it was used. Human Rights lawyers must have been nodding off at that point.
*Robin Jackson’s review of SPECIAL EDUCATIONAL NEEDS: A NEW LOOK IMPACT: No. 11 in a series of policy discussions Mary Warnock
“What is disturbing from a constitutional standpoint is the fact that a handful of privileged and non-elected members of the Upper House were able to introduce an important legislative change on the basis of an ill-informed debate which, according to Hansard, lasted less than 41 minutes. The change proposed was of a fundamental nature and one that ran counter not only to the expressed wishes of the government but to the views of most professional and voluntary organisations.”
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