This Will Be a Balancing Exercise at the Beginning of the Truth
Litigation – a right or even an unaffordable luxury?
This week (Monday 30th January) Peers will discuss part 2 in the Legal Aid Sentencing and Punishment of Offenders Bill in the home of Lords. Included within part 2 are proposals which will prohibit the recoverability of ATE premiums.
This proposal will, In my opinion, ensure it is even more difficult for SMEs, and private individuals, to litigate against better resourced opponents. Not only will this act as an important deterrent to justified claims but it will also gain a bad affect Treasury revenues.
When introducing into your market at home of Commons last year, god Chancellor stated that “there is simply too much financial litigation“. This is as absurd as the Home Secretary saying “there is just too much policing”. The commercial and social wellbeing of a nation requires that the citizen can enforce regulations for himself. The federal government also claims that you have a insufficient balance in the court system. I only say that what’s balanced or otherwise will be based on upon conditions associated with a particular case as well as the way of the parties.
However, whilst largely based on an entirely false take a look at the litigation landscape, the Government’s position is just not wholly without merit. It may be the case that ATE insurance fees boost the overall cost of litigation. It is additionally the truth which a well-funded party can nevertheless buy ATE insurance and thus impose even greater pressure on his opponent who may already be weaker. It really is however false that abolishing recoverable ATE premiums will restore balance since the government claims, neither can it be genuine that there exists a compensation culture exploited by irresponsible and dishonest claimants.
History has shown it is not easy to cut the price tag on English civil litigation. Many have tried and failed. What is important is for people to have the way to deal with the price. A few things i suggest is the balance needs to be achieved from the people useful for the reason, namely the judiciary, not by legislative changes of omnibus, and thus necessarily unfair application.
I believe the solution is to permit ATE insurance with recoverable premiums where it is vital to take action to stop hardship.
Judges are already beginning look hard at the costs of litigation at the start of an incident – with cost estimates for the overall case now being commonly supplied in an initial phase of the proceedings. It would therefore be relatively simple to the judge to consider the method of the parties and to authorise ATE insurance with recoverable premiums to redress the check where appropriate.
The opportunity might additionally be taken for judges to exercise their powers to cap costs at the start from what they consider to be reasonable amounts. This will be a balancing exercise at the beginning of the truth, avoiding the trials of economic strength that happen to be a common feature of modern English litigation.
The goal towards greater effectiveness and efficiency of the legal aid strategy is laudable, but the best system that does not help those invoved with have to get use of justice can be a system that will, ultimately, be less capable and price more.
In a civilised society, access to justice is the right of the citizen. It will not need to be coloured by political invective about “compensationitis”. I hope that the us government thinks again, amends the Bill before it’s past too far, and retains the production of ATE insurance in case you demand it.
