“The best model of facilitating access to justice is the German model. Like England, Germany has a cost-shifting rule, entitling the successful party to recover her litigation costs from the unsuccessful party. But, unlike in England, recoverable costs are not open ended. Instead, they are fixed by law as a reasonable percentage of the value of the subject matter in dispute (or its notional value where the claim is not for money). Parties are free to pay their lawyers whatever they agree, but they cannot recover more than a fixed amount. Since litigants know the amount of costs that they would recover in the event of a favourable judgment, they have every reason not to pay their lawyer significantly more than they are likely to recover in costs because doing so may leave them with a worthless judgment.
So why doesn’t the English system adopt a similar rule? The answer is straightforward: resistance from the legal profession to changing a system that serves the legal profession well, as the above examples indicate. In England, lawyers normally charge by the hour, without an upper limit and regardless of outcome. The more complex and protracted the litigation, the greater the number of billable hours. As economic activity tends to follow the most rewarding path, forensic litigation practice has evolved accordingly, with the result that a culture of leaving no stone unturned has become normal practice.”
“In conclusion, the court is a vital component of the rule of law, without which we can have no security, no welfare, no prosperity and no civilisation. For the court to fulfil its role it has to be reasonably accessible to all those whose rights are infringed or liberties are threatened, and not just to some subsets of society. Access to court must therefore be reasonably affordable to all. It is only when this becomes reality that it would be reasonable to make a case for subsidising the poor or for some special arrangements for judicial review.”
In the article by Tom Hickman, “Public Law’s Disgrace”, Hickman laments the fact that the “vast majority of the population have no access to judicial review in any meaningful sense.” He goes on to say that this “is because of the rule, derived from private law, that if a claim is lost the claimant must pay the costs of the defendant …” He therefore suggests the introduction of a one way costs shifting rule in applications for judicial review whereby if the applicant wins she recover her costs, but has to pay nothing if the public authority is successful.
It is indeed the case that to bring or defend proceedings in England a party must commit to costs that are unknowable in advance and open ended. Not infrequently, the total costs end up out of all proportion to the value of the dispute or its importance. Going all the…
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