Access to Justice Review Part 2

23 November 2015

The Department of Justice in Northern Ireland has now received the second and final report focused on a strategy of Access to Justice with 270 pages containing 150 wide ranging recommendations which they author believes will reduce costs and improve the experience of those who come into contact with the Justice System.  A consultation on this report opened on 3^rd November 2015 and responses to the proposals are invited up to 9^th February 2016.

The author has again looked at our Legal Aid System and the cost of this to the public in criminal, matrimonial and in civil non-family cases.  He advises that with the possible exception of Norway, Northern Ireland has the most expensive Legal Aid Scheme in the world.  Apart from dealing with the provision of Legal Aid and alternatives, comments and recommendations are made in relation to the structure of the legal profession in Northern Ireland and the Court System.  The author, Mr Colin Stutt acknowledges that Lord Justice Gillen is currently undertaking a Review and Civil and Family Justice.  That review and the recommendations that will follow from it together with the recommendations in the Access to Justice Report have the potential to significantly change the landscape of civil litigation in Northern Ireland.

In the first Access to Justice Review in 2011 it was recommended that money damages cases except for Complex Clinical Negligence cases should be removed from the scope of Legal Aid.  This report confirms that original view recommending that Legal Aid is removed from the great majority of money damage cases.  The report looks at alternative funding arrangements and recommends introduction of conditional fee arrangements for Northern Ireland with success fees taken from the damages.

On Court administration and structure of the Legal Profession Access to Justice II suggests that the County Court Limit should increase to £50,000 and indeed that the County Court should be the compulsory entry point “for the vast majority of Civil Litigation.” Transfer to the High Court being decided by the Court.  That is precisely what Lord Justice Gillen’s review is considering and the report also recommends that Judges should be tasked with improving the efficiency of the Justice system.  Mr Stutt looks to other jurisdictions, most notably England and Wales, as a justification for the reforms suggested but he does acknowledge that not all English reforms have been successful .  He considers the Woolf Reforms as being widely regarded as successful in most respects except in relation to the overall control of costs and the Jackson reforms which then had to follow.  Northern Ireland has steered well clear of that nightmare and the report acknowledges that with our Costs Structure it is unlikely that we will get into the bind that was created in England and Wales and the satellite litigation that those reforms provoked.

Administratively the report looks at the practice of our Courts and the listing of cases based on an adversarial system and opines that that there has been and continues to be a waste of time and resources, recommending the greater use of technology and the tools of the 21^st Century to improve the Administration of Justice.

Chapter 27 gives a summary of recommendations which the overall report makes.  From the perspective of Civil cases some of the highlights are: -

• Greater enquiry and identification of before the event insurance policies
• Conditional fee arrangements but with no additional liabilities on Defendants
• A level of success fees capped at 20% of damages recovered.  Success fees not to apply to Road Traffic cases.
• Court Business should be conducted by telephone or email rather than at oral hearings
• The practice of placing in a on a whole day list should cease together with over-listing.
• County Court as the compulsory point of entry for civil non-family cases.
• No postal system for lower value claims
• Liberalisation of Bar Rules on the utilisation of QC’s.
• Greater use of ADR

The Court recognises that further consultation on all of the recommendations is necessary.  Their potential effects will have to be judged on financial economic impact and efficiency grounds.

At the very least the report does give food for thought for the Department of Justice, the Judiciary, the legal profession and other stakeholders.  It appears to be the wish of the author of the report that by 2020 he will not recognise the Administration of Justice as is in its present form.

The full report is available on line at: www.dojni.gov.uk/publications/access-justice-review-part-two-final-report