We will be justified in taking some time to discuss and evaluate the issues of finance in regards to claims in the County Court. This is because England does not have a “nationalised” system of providing advocacy in civil matters, unlike in the criminal courts where a defence and a prosecution are guaranteed by the Criminal Defence Service and the Crown Prosecution Service respectively. Costs are ultimately born by litigators one way or another and although legal aid exists (and will be examined), without the ability to pay, civil justice is out of reach. “Civil litigation in England and Wales is notoriously expensive,” says Mildred (2009). With this in mind, we must certainly recognise that if potential litigators cannot even afford advocacy, the ability to bring small claims to the court by a great many people would be essentially nonexistent. For the purposes of this essay, the study of how litigation may be paid for is intrinsically linked to the evaluation of hand. In the context of the development of English law relating to the ability of people to make small claims in the County Courts it is entirely appropriate to speak of whether litigants can actually afford to make a claim in the County Courts. English law incorporates many aspects; not just the makeup and purpose of the Courts, but also the procedure by which they operate. To ignore it would be to miss the point of the ability to make claims in the Civil Courts in the first place.
Lord Woolf's report in 1996 that led to the CPR stated that “there is no alternative to a fundamental shift in the responsibility for the management of civil litigation in this country from litigants and their legal advisors to the courts.”(Zuckerman, 'Civil Litigation: a Public Service for the Enforcement of Civil Rights', p2) The main thrust, then, of the CPR was to transfer control of the process of litigation from the involved parties to the court. So why is legal aid, civil procedure, and funding of litigation important to people's ability to raise claims in the County Court? Zuckerman (ibid)notes that civil law enforcement is just as important as criminal law enforcement if we are to live in a lawful society. The criminal law is funded entirely by the taxpayer but in the civil law the same can not be said. This is a blocking point for the ability of people to make claims as advocacy is not cheap.
It is true that all these issues with legal aid also apply to the other civil courts and in part to the criminal courts in regards to private prosecutions. But with the County Court they are especially important, because of the County Court's intended purpose; to provide civil justice for those who might otherwise not be able to afford it. No doubt if every potential case was paid for by the taxpayer, the ability of people to make small claims in the county court would be greatly increased. Yet costs would skyrocket, and it might open, as judges often say; “the floodgates of litigation.”
One method of controlling the costs of claims are the protective costs orders (PCO), recognised formally after the Beddoe jurisdiction in Beddoe, Re. Originally this “enabled trustees who brought proceeding on behalf of the trust to seek an order that their costs shall be paid out of the trust fund.” Later on, though, PCO's began to develop as a way for a litigant to avoid paying the other side's costs if unsuccessful. At first, these were public organisations and charities who could not spare the resources; hardly the demographic held in mind in regards to the County Court. (Zuckerman, 'Protective Costs Orders – A Growing Costs-Litigation Industry', p161.) Yet it is important that public associations ought to be able to use the claims systems; for instances, a pressure group accused of libel may insist that the case would be an issue of free speech. England's system of precedent makes it important for voluntary organisations in an open society to be able to defend themselves in court. In some instances, then, the ability to make small claims in a County Court is not simply an issue of public access to justice. It becomes a democratic necessity. In R v Lord Chancellor Ex p. Child Poverty Action Group [1999], it was held that voluntary organisations may apply in advance of proceedings for a PCO. (Ibid, 161-162).
Cost capping is also one method of controlling the costs of litigation. CPR Part 26 requires both parties to provide estimates of costs. The assumption would be that these costs, taken before the trial, would be capped at the estimation. The Court of Appeal in Leigh v Michelin Tyre Plc, however, held that “the mere fact that a litigant supplied a low costs estimate should not prevent the litigant from claiming much higher costs.” (Zuckerman, ibid, p273). There seems to be little future in cost capping and at any rate, in practical terms, if it was taken seriously, solicitors might simply give high or exaggerated cost estimates in any case. Cost capping seems an ineffective way of ensuring that everyone has access to the civil courts.
Another element in reclaiming costs falls under the concept of proportionality. CPR r.44.4(2) states that “where standard costs (which represent the normal measure of costs) have been ordered, the court will 'only allow costs which are proportionate to the matters in issue.' The aim of this was for the Court to disallow legal representatives charging the Earth for extremely minor matters of litigation, so that costs must be proportionate to the importance of the litigation; a “sensible correlation” in the words of Adrian Zuckerman. (Zuckerman, Id at 271). However, the Court of Appeal held in Lownds v Home Office that if a “process was necessary, a reasonable amount must be allowed in recoverable costs, regardless of its correlation to the subject-matter in matter... or its importance.” (Ibid at 272). Clearly, then, costs may still be owed by a litigator that are disproportionate to the importance of the claim. This would be especially important to the Small Claims Track where claims are below £5,000 and legal fees may well be in excess of the amount expected to be awarded to a successful litigator by the court. This puts strong practical and theoretical limitations on the ability to make small claims: unless a litigator is motivated more by vindication than financial reward, claims may well be rendered pointless if the case is particularly complex or requires much attention by legal representatives to the point whereby costs might become disproportionate.
The legal aid scheme in England and Wales is run by the Legal Services Commission, which was etssablished by the Access to Justice Act 1999. It assists over two million people per year access legal advice, information and help. The gross income of a legal Aid client, however, may not exceed £2,675, or £32,100 a year and is means and merit tested. This is just above the average household income in the United Kingdom. Clearly then, legal aid is available for many, but not so many that other methods of providing ways of funding access to civil justice are necessary. Furthermore, civil legal aid does not cover all cases that may be actioned in the county courts. For instance, it does not cover negligence.
Indeed, the situation described in 1956 by Peter Archer (Archer, 1956, p131) whereby “[The judge] has frequently to listen to litigants appearing without an advocate” can scarcely be described as favourable by any free-thinking Englishman. How can the law be described as a bastion of liberty and equality in England when men appear before judges in the Queen's Courts without proper representation?
When considering the ability to make claims in the County Court, the provision of Legal Aid under the jurisdiction of the LSC can surely be described with some vigour as a positive development in English law.
Things are changing, however. “The Government has in any event indicated a clear wish to transfer funds from criminal defence to civil legal aid and particularly to social welfare cases.” (Edwards, 'Civil Litigation: a Public Service for the Enforcement of Civil Rights').
Concluding the ability to make small claims in the County Courts is a matter of considering whether the actual ability of the poorest member of society to bring a claim before the Court is existent. Clearly it is not. Legal Aid covers only some forms of litigation. Other methods require cash to be provided up front. If we are to live in a society governed by law, then the poorest of the poor must be given access to the justice system equal to that of the richest of the rich. In theory, English law has an excellent development in the form of the County Courts for individuals and organisations to seek small claims. In reality, without the ability to finance these “disproportionately costly” cases, the ability to make claims is severely reduced and lopsided in favour of those who can afford litigation.
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Bibliography
Articles from Journals
Edwards, A. (2009) 'Civil Litigation: a Public Service for the Enforcement of Civil Rights' Archbold News, 7, 8-9
Mildred, M (2009) 'The development and future of costs capping' 28(1), 141-151
Zuckerman, A. (2009) 'Costs Capping Orders – the Failure of the Third Measure for Controlling Litigation Costs' Civil Justice Quarterly Volume 26 Editor's Note, 271-277
Zuckerman, A. (2007) 'Civil Litigation: a Public Service for the Enforcement of Civil Rights' Civil Justice Quarterly Volume 26 Editor's Note, 1-9
Zuckerman, A. (2009) 'Protective Costs Orders – A Growing Costs-Litigation Industry' Civil Justice Quarterly Volume 28 Editor's Note, 161-168
Cases
Beddoe, Re [1983] 1 Ch. 457
R v Lord Chancellor Ex p. Child Poverty Action Group [1999] 1 W.L.R. 347
Lownds v Home Office [2002] EWCA Civ 365
Leigh v Michelin Tyre Plc [2003] EWCA Civ 1766
Books
Archer, P. (1956) The Queen's Court, Penguin Books
Malleson, K. (2007) The Legal System, Oxford University Press
Online
Her Majesty's Court Services
Legal Services Commission
Office of National Statistics
Office of Public Sector Information
Statutes
Access to Justice Act 1999
Civil Procedure Rules 1998
County Courts Act 1846
County Courts Act 1984
Legal Aid and Advice Act 1949
http://www.hmcourts-service.gov.uk
