Man on a mission

I vowed when I took up office as president of the Association of Her Majesty’s District Judges last March that my mission was to persuade the government to return to funding our civil courts to a realistic level and, as the recession brings more and more individuals to the county courts, to ensure that all of those who need it have access to free and efficient expert advice and assistance from a duty solicitor or CAB or other advice agency which is independent of HM Courts Service.

I remain undaunted in my efforts to drive this agenda forward, yet viewed against the background of falling public expenditure this now appears to be rather an optimistic aspiration.

Civil legal aid cap

In the family arena the legal aid budget has been squeezed considerably and this has real implications for district judges. It means that parties are often not able to afford legal representation and these are cases where we are dealing with disputes about where children should live or how contact arrangements should work. These are not areas where people should have to represent themselves: they are emotive and it is unfair that they have to represent themselves, but that is the reality of the situation.

The second problem with the squeezing of the legal aid budget is that, as the amount that can be paid to lawyers is reduced, more of these lawyers are simply not prepared to do the work for the amounts that they are being offered. This isn’t a matter of them being greedy, it is a matter of being realistic. Undoubtedly solicitors and members of the Bar are deciding that they can no longer afford to do this work and this leaves those that were potentially able to get legal aid not being able to find a lawyer to deal with it. Access to justice is becoming a major problem. If people don’t have access to proper representation then in many ways they are not getting proper access to justice.

What I hope I have managed to achieve in my year in office is to give a greater degree of prominence to the civil and family justice system so that there is at least a recognition of the important part it does play within the overall justice system—something I know Jackson LJ has had at the forefront of his mind when writing up his final report on his review of civil litigation costs.

The impact of Jackson

Jackson LJ’s interim report was so comprehensive and dealt with a whole gamut of issues relating to civil costs that it will be fascinating to see what proposals he actually comes up with when his final report is published this week. 

I suspect he will come up with some quite radical proposals in certain areas which will not necessarily be popular across the board. Obviously those most affected will be those people receiving or paying the costs, ie the lawyers on either side, and trying to find ways of addressing all of their concerns is going to be extremely difficult for him.

He recognises, and the then Master of the Rolls recognised when he asked him to undertake the review, that civil costs is a significant problem, particularly the costs in the lower value cases. This is because of a combination of factors, primarily the introduction of conditional fee agreements which, coupled with success fees, has significantly increased the amount of costs in those type of cases by a percentage of up to 100%. Something has to be done about this.

I expect Jackson LJ to make recommendations that are designed to deliver significant costs savings in terms of the cost of litigation. Whether those recommendations will be taken forward depends on what they are and what is needed to take them forward. If primary legislation is needed that may be more difficult, if only rule changes are needed that is something that can be dealt with quite speedily. I think that at the moment everybody is simply going to have to wait and see what the recommendations are and then we shall see what steps are taken with a view to implementing them, or at least hopefully some of them.

District Judge David Oldham is president of the Association of Her Majesty’s District Judges
 

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