LITIGATION IS “VERY MUCH AN OPTIONAL ACTIVITY”: HOW WOULD THE MO(I)J RESPOND TO “NON-OPTIONAL” LITIGANTS?

There is no greater sign of the MO(i)J’s lack of understanding of the reality of litigation than the statement, made in the House of Lords by Lord Faulks, that “litigation is very much an optional activity”. 

TELL THAT TO BUSINESSES THAT NEED TO PROTECT THEIR INTEREST OR GO BUST

The MO(i)J should tell that to a  claimant in a case  like Intercity Telecom -v- Solanki where an entire business was threatened by the theft of its information and where the defendant prevaricated and lied all the way to trial (which he did not then attend). (The action was funded frugally with the total costs of £68,959.25, in circumstances where the claimant has lost revenue of £2.7 million).  The increased court fees would have added greatly to the costs (with no guarantee that they would be recovered).

The MO(i)J’s response – litigation is an “optional activity”.  Only big companies can afford to litigate. Go out of business. Don’t bother us with your search for justice. Put your employees on the dole and let the cheaters prosper.

TELL THAT TO SERIOUSLY INJURED CLAIMANTS

Take a young seriously injured like Annie Woodland in a case where it took 15 years to get to trial and where the defendants took the case to the Court of Appeal once and the Supreme Court (once) and where the defendants were prepared to adduce new “evidence” right at the beginning of the trial.  It would have taken 15 years to get her £10,000 back.

The MO(i)J’s response – “litigation is an optional activity”. Live a life of poverty. Don’t bother us with your search for justice.

TELL THAT TO ALL THOSE BUSINESSES WHO ARE NOW GOING TO GO BUST

Everyone with any experience of credit control or debt collection is saying the same thing. When you issue proceedings you are never certain you are going to get a debt back. The “double whammy” of not getting the court fees back will be more than many businesses can bear.

Woodcooks Howarth & Nutall write

“Scores of business owners who work hard to manage their credit control systems will be hit the hardest. The significant increase in court fees is likely to put SME’s off recovering debt in court altogether.

“While the Government believes this will stop tax payers footing the bill for court proceedings, local businesses could be forced into liquidation because they will be unable to recover debt owed to them.”

The MO(i)J could read some of the comments on UK Business Forums

“I think you’ll find that most creditors aren’t interested in the why’s and wherefores … they’ll just see that they are getting kicked again! (when they look at the increases)…”

“With the addition that they’re raising the amount a debt needs to be to issue a Statutory Demand (IIRC £10k?), it’s really not helping SME’s at all”

“It’s difficult to work out what they are trying to do. They say they’re trying to help industry, but I don’t think they are looking beyond the end of their noses.
Case in point: Massive hike in employment tribunal fees 2 years ago has reduced employment tribunal actions by 79%. So they’re now considering lowering the fees!
Another example, they’re now looking at how to fill the gap in the advice desert they created by reducing access to legal aid.
On a similar note, they are trying to solve the problem of a huge increase in unrepresented litigants, which they created with their legal aid changes and the doubling of the small claims limit in April 2013.
I am reminded of that scene in Father Ted where they try to knock a small dent out of their car, and end up with a total loss.”

The MO(i)J’s response – “litigation is an optional activity”. It is our not our concern that you cannot collect debts. (The government will, however, take strenuous action if you are consequently late in paying taxes or VAT. The Court Fees won’t bother us)

TELL THAT TO THOSE WHO PAY INCREASED PREMIUMS

One of the major arguments the government put forward for the portal, the Jackson reforms and much else is the promised decrease in insurance premiums.  Since (as Lord Faulks recognised) the increased fees will be paid

The MO(i)J’s response – we never meant it really, anyway different rules apply to us. Litigation is an “optional activity”- sort yourselves out.

TELL THAT TO LORD JUSTICE JACKSON

The government has put much effort into the attempt to regulate (and reduce) the costs of litigation. It has totally forgotten (or simply does not care) that a central part of his report was to keep the costs of court fees to a minimum.

“3.35 In chapter 7 of the Preliminary Report I expressed the view that court fees were too high and that the principle of full cost pricing was wrong in principle. During Phase 2 of the Costs Review there has been almost universal agreement with the views expressed in PR chapter 7″

The MO(i)J’s response – please don’t point out our blatant hypocrisy and, em.., litigation is “an optional activity” anyway.

TELL THAT TO THE HOUSE OF COMMONS

The Commons Select Committee clearly recognised the depth and breadth of the MO(i)J’s ignorance and incompetence when it comes to dealing with the litigation system.

“Access to justice is one of the most fundamental principles of our society, and the purpose of legal aid is to ensure that the poorest and most vulnerable people enjoy that basic right.

So it is deeply disturbing that the Ministry of Justice’s changes to civil legal aid were based not on evidence but on an objective to cut costs as quickly as possible. The Permanent Secretary told us that “the level of spend” was the “critical” factor driving the reforms.

The Ministry still does not understand what its reforms mean for people. It has little understanding of why people go to court and how and why people access legal aid in the first place, and only commissioned research into these issues in 2014 – more than a year after its reforms were implemented.

There are signs that the complexity of the justice system may be preventing people who are no longer eligible for civil legal aid from securing effective access to justice.”

(That “little understanding” is perhaps a major understatement.)

The MO(i)J’s response? We did research this, we made 18 phone calls about this you know. We do understand why people go to court anyway – it is an “optional activity,” more of a leisure activity we think….”

One comment

  1. There is letter in today’s Times from a retired solicitor making the point that he is pleased not to be in practice. He particularly questions how a firm supposed to bank roll a £10,000 issue fee for a £200,000 claim (i.e. nasty motorcycle accident) on a ‘no win no fee’ agreement?

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