The Traversalist

Litigation – a right or an unaffordable luxury?

This week (Monday 30th January) Peers will talk about part 2 of the Legal Aid Sentencing and Punishment of Offenders Bill in the House of Lords. Included within part 2 are proposals that can prohibit the recoverability of ATE premiums.

This proposal will, I believe, ensure it is even more difficult for SMEs, and individuals, to litigate against better resourced opponents. Not only will this behave as an important deterrent to justified claims nevertheless it may also have an adverse impact on Treasury revenues.

When introducing into your market at home of Commons this past year, the Lord Chancellor stated that “there is too much financial litigation“. This is as absurd since the Home Secretary saying “there is way too much policing”. The commercial and social wellbeing of an nation necessitates that the citizen can enforce the law for himself. The us government also claims that there is a deficiency of balance in the courtroom system. I only say that precisely what is balanced or otherwise will depend upon situations from a particular case and the means of the parties.

However, whilst largely based upon a totally false view of the litigation landscape, the Government’s position is just not wholly without merit. It may be the case that ATE insurance fees increase the price tag of litigation. It is additionally true which a well-funded party can nevertheless buy ATE insurance thereby impose sustained pressure on his opponent who may already be weaker. It can be however incorrect that abolishing recoverable ATE premiums will restore balance since the government claims, neither could it be true that there’s a compensation culture exploited by irresponsible and dishonest claimants.

History shows it is difficult to chop the cost of English civil litigation. Many have tried and failed. What is critical is good for us all to offer the ways to deal with the expense. Some tips i suggest is that the balance needs to be achieved with the people useful for the point, namely the judiciary, not by legislative changes of omnibus, and for that reason necessarily unfair application.

I believe the answer then is permitting ATE insurance with recoverable premiums where it is necessary for this to prevent hardship.

Judges are already starting to look hard at the costs of litigation at the start of a case – with cost estimates for that overall case now being commonly supplied with an early on in the proceedings. It would therefore be easy for that judge to think about the ways of the parties and authorise ATE insurance with recoverable premiums to redress into your market where appropriate.

The opportunity may additionally be studied for judges to exercise their powers to cap costs in the beginning as to the they think are reasonable amounts. This will be a balancing exercise at the outset of true, avoiding the trials of financial strength that are a standard feature of modern English litigation.

The goal towards greater effectiveness and efficiency with the legal aid method is laudable, but the best system it doesn’t help those invoved with want to get access to justice is a system which will, ultimately, be less powerful and cost more.

In a civilised society, access to justice is the right of the citizen. It will not should be coloured by political invective about “compensationitis”. I hope that the us government thinks again, amends into your market before it is too far gone, and retains the production of ATE insurance for many who require it.

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