Access to Court / Justice and Legal Costs

Avatargh

I'm starting this on the basis of a view that seems to be out there that legal costs can block people having access to the Courts.

I don't think that anyone with an ounce of sense can disagree that legal costs can block access to the Courts. If you want to run a case, and running that case is a time consuming and complicated exercise, it will cost money, ergo (and concordantly, vis-a-vis), you might not be able to afford it.

My difficulty is with understanding what is necessarily wrong about this or at least, if it is wrong "in principle", what is point and purpose of placing the blame on legal costs?

I think we can all grant that people can be overcharged, but I have little time for this when any self-aware person can "shop around" if they really want to. So, leaving that aside - what is wrong with the fact that legal work (just like accounting work or medical work) can cost money which some people don't have?

Think about Karen's case against Mick (lets say its about personal injuries) which will involve the need to secure medical reports from 4-5 professionals (occupational therapy, neurology etc etc). She does not have the money to source them and thus cannot proceed with the case in any way which a lawyer would stand over (i.e. personal injuries with no medical opinions). Is there something to be critical of when a lawyer won't fund the action with his own money (leaving aside if that is legal or not)? Isn't this simply the unhappy fact that things cost money?

If you change the paradigm slightly (again, leaving aside objectionable conduct like overcharging), you could imagine a case where the lawyer informs the client that due to its complexity (or maybe the bad state of the client's records), it will take 20 hours of "read in time". Suppose his hourly rate is, lets just say, the rate of a newly qualified accountant (rather than partner) of €100.00 per hour, he needs €2,000.00 to even spend the time to consider the case. Is there anything really wrong with that? If the person doesn't have the €2,000.00 and if you equate "not affording a lawyer" with "not having access to justice" is there anything really wrong here that we should be trying to change?

Tom Young

A good idea. So, before we start, can someone outline the dynamics of losing a case that should not have been taken in the first instance?

Then, a case which you were advised to take, lose it and have to face the consequences?

Procrastastudy

May be I've missed the point here but some suggestions / observations.

In the England and Wales No win no fee personal injury is a massive business - I wonder what is different in the dynamic here. If these were more widely available it this would seem to remove the bar on the cost access for personal injury. It's also self regulating as the company taking on these actions won't take on sure losers.

Defamation actions should be funded by a pot maintained by the media, facebook and alike. They should have to pay into a scheme where they either fund a parties legal costs or there is some sort or arbitration scheme. If the plaintiff loses the action then he should have to repay with the obvious implication that he probably can't afford to repay the entire sum. Although this wouldn't remove the risk it would at least remove the bar to even trying.

Avatargh

Sure, but I suppose what you're getting at is the increased factor not simply of one's costs as a barrier, but facing the costs of the other side?

What do you mean by the dynamics though?

Tom Young

What happens from a Cost point of view. There are rules and discretions that should be considered.

Example: Order 99, Rule 4A, about costs following the event. So, you lose, you pay others parties costs.

Avatargh

GCDLawstudent wrote: »

In the England and Wales No win no fee personal injury is a massive business

Yes, but what those adds don't tell you is that not every case is taken and they may not be interested in high outlay cases. Many personal injuries cases need one report from a doctor and maybe an engineer's report. Other cases can need upwards of fifteen reports combined.

GCDLawstudent wrote: »

Defamation actions should be funded by a pot maintained by the media, facebook and alike. They should have to pay into a scheme where they either fund a parties legal costs or there is some sort or arbitration scheme. If the plaintiff loses the action then he should have to repay with the obvious implication that he probably can't afford to repay the entire sum. Although this wouldn't remove the risk it would at least remove the bar to even trying.

But again, we're back to square one. Why should private parties subsidise private action? If one criticises legal costs, the argument is that lawyers should subsidise...this is now suggesting that other private parties subsidise it. Describing the suggestion isn't the same as justifying it!

The point which seems to keep coming up is that "it costs too much to go to Court" and it is not usually counter-balanced with a close analysis of just how much work is involved in a Court-case.

I'm confused really with where the "should" comes from. Why should it cost less? Why should private parties (including lawyers) bear a subsidy risk?

Avatargh

Tom Young wrote: »

What happens from a Cost point of view. There are rules and discretions that should be considered.

Example: Order 99, Rule 4A, about costs following the event. So, you lose, you pay others parties costs.

Right, but is that relevant? Obviously, the risk of paying the other side is a barrier, but the wider question is, again, what is wrong with that? You lose, you have brought someone (without need) through the legal system who now faces their bills? Certainly, there are arguments that this rule could be modified as regards some public bodies (and it has been)...

Lets just assume we have the following rules:-

1. You want to bring a case
2. You have you pay your lawyers, and its more than you can afford.
3. If you lose you have to pay the other side, and its more than you can afford.

If we take all those 3 as a given, is there anything necessarily wrong with that? And if there is - and assuming the costs are all legitimate and the work is all done - is there any point to simply saying "legal costs blocks access to justice"?

Wouldn't it be far more accurate to say "the fact that law is complicated, and it takes time and effort and work blocks access to justice"?

And if that was really the point, then its not fair to keep attacking the lawyers!

Procrastastudy

Avatargh wrote: »

Yes, but what those adds don't tell you is that not every case is taken and they may not be interested in high outlay cases. Many personal injuries cases need one report from a doctor and maybe an engineer's report. Other cases can need upwards of fifteen reports combined.

I'm afraid I don't have the depth of knowledge to give you a good argument. I would assume that given the scale of some of these companies they can get these reports at a lower cost then the piece meal way it is done in Ireland. I'm under no illusion that they take every case but that is part of the way it would self regulate. I have to admit I'm as much asking a question as making a point here.

Avatargh wrote: »

But again, we're back to square one. Why should private parties subsidise private action? If one criticises legal costs, the argument is that lawyers should subsidise...this is now suggesting that other private parties subsidise it. Describing the suggestion isn't the same as justifying it!

On the defamation note this would be (on the whole) huge companies simply being forced to redress the balance of power. I personally don't think thats a bad thing. The other option would be to increase taxes and better fund legal aid. I don't think there is much debate that in the sphere of defamation actions the little people get screwed more often than not.

Avatargh wrote: »

The point which seems to keep coming up is that "it costs too much to go to Court" and it is not usually counter-balanced with a close analysis of just how much work is involved in a Court-case.

I'm confused really with where the "should" comes from. Why should it cost less? Why should private parties (including lawyers) bear a subsidy risk?

This is a very interesting question and always a balancing act - I simply think we don't have the balance right. The legal system costs very little to the state and huge amounts to the private parties involved. Now there is an argument that thats they way it should be. There is the same argument to say that the health care system should be the same way (as in the US for example). I'm just a socialist I guess

Avatargh

GCDLawstudent wrote: »

I'm afraid I don't have the depth of knowledge to give you a good argument. I would assume that given the scale of some of these companies they can get these reports at a lower cost then the piece meal way it is done in Ireland. I'm under no illusion that they take every case but that is part of the way it would self regulate. I have to admit I'm as much asking a question as making a point here.

The irony here, however, is that the very cases which can (easily) be taken on this basis are usually the cases held up as examples of the system gone made in the "jaysus-he-got-all-dat-munny-4-whiplash?" kinda way. The very kind of cases where a person truly and absolutely needs access to justice to secure a quality of living (e.g. birth negligence cases) are the ones which cost incredible amounts of money to fund. Interestingly, when people point out the legal costs barrier, little emphasis is usually paid on the costs of expert reports.

GCDLawstudent wrote: »

On the defamation note this would be (on the whole) huge companies simply being forced to redress the balance of power. I personally don't think thats a bad thing. The other option would be to increase taxes and better fund legal aid. I don't think there is much debate that in the sphere of defamation actions the little people get screwed more often than not.

I see your point, but these things are usually a fallacy in the sense that private enterprise just won't shoulder the cost. It will be passed on in other ways to the consumer and we may as well just do it through taxation. Again though, if there is one area where the "unmeritorious action" label has, perhaps, the most gravitas, its in the area of libel.

GCDLawstudent wrote: »

This is a very interesting question and always a balancing act - I simply think we don't have the balance right. The legal system costs very little to the state and huge amounts to the private parties involved. Now there is an argument that thats they way it should be. There is the same argument to say that the health care system should be the same way (as in the US for example). I'm just a socialist I guess

You don't need to be a socialist! For example, the new planning laws provide for a comparable costs system when it comes to planning matters in the sense that you won't pay the other sides costs, but of course you still have to pay your own costs which people are still giving out about.

I just don't see that legal costs are a barrier to access to justice in any sense that is worth talking about. Its like talking about how the sky is blue.

What is worth talking about is how law (contrary, it seems, to widespread public belief) is difficult and complex work and there is no getting around that. If you want to begin a complex challenge in a probate matter, then you can't really complain that "my lawyers wanted ten grand and I haven't seen a penny" (which isn't atypical). However, there isn't really anything you can do about this. Sure, every reform we get now simply increases the work involved. Take the new pleading rules in judicial review. Given the level of detail now required in pleading, the time commitment involved is up. Take the new rules which place emphasis on ADR in the litigation process. Someone has to prepare all that! Even look at the Commercial Court. Its not more expensive simply because it "is" the Commercial Court. Its more expensive because the Court eschews the traditional time-line in proceedings and requires matters to be done far quicker and, indeed, with far more front loading of the work which, again, costs far more money because its far more work!