Wednesday, 8 June 2016

Is access to justice being put out of reach ?

Fair and accessible justice for all citizens is an important measure of a modern democracy and was once an export that the UK had reason to be proud of. 

But as access to justice is diminishing, especially for some of the most disadvantaged in society, ARAG’s Paul Hurley asks whether the UK is in danger of tumbling down the justice league table.

That access to justice is being significantly restricted in the UK is no longer a matter of debate.
The announcement, in February, that 86 courts and tribunals in England and Wales would close in the following 18 months heralded the introduction of geographical obstacles to justice that will only add to the legal and financial barriers that have been built up in recent years.
Certainly, there are efficiencies to be made and some valuable estate to be realised too, no doubt. But the argument that our courts are underutilised to the extent that nearly 20 per cent of them can now be closed is a circular one. The courts are used less because recent reforms are restricting the public’s access to them. Increasing court fees, limitation of employment rights and cuts to legal aid have all taken their toll, and the successive attacks on after-the-event (ATE) insurance as a mechanism for enabling justice are equally damaging and look set to continue.

Putting justice out of reach 


Consultation on the reform of clinical negligence litigation may have been delayed, but the outcome of the previous personal injury reforms ushered in by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2013, will still not yet be fully calculable when the consultation gets underway. The consequences of introducing fixed costs or making after-the-event premiums unrecoverable in such cases would be disastrous for some of the most vulnerable in our society.

"The reality is that there are dependable, A-rated insurers with a solid pedigree who have continued to provide certainty to law firms and their clients in spite of the numerous challenges that have beset the ATE market in recent years"


ATE premiums need to be recoverable across a significant pool of cases for the system to work. Further tinkering will increase premiums to the point that they are completely unaffordable, and put justice for many of those harmed by malpractice completely out of reach.

Proposals to significantly increase the small claims track limit in other personal injury cases and remove the right to compensation for what could be quite serious soft tissue injuries are similarly misguided. They have been presented as an attempt to address the tiny minority of fraudulent and “unnecessary” claims, but suggestions that they will generate a £40 saving that motor insurers will pass on to customers have been widely ridiculed. Thousands of quite seriously injured people will be arbitrarily left without recourse and the few fraudsters will quickly find a new modus operandi.

Again, the removal of a large segment of cases from the pool of risk will have a disproportionate effect on those for which insurance could still be appropriate, making the whole concept of ATE insurance unworkable in such cases.

Resilience in the face of adversity 


Part of the failure to appreciate the role ATE policies play in delivering access to justice appears to be a fundamental lack of understanding about the principles of insurance. The more legislators and their agencies try to chip away at premiums in the many, lower value claims, the higher premiums will inevitably go for the remaining few who often need the benefits of insurance most.

Perhaps some segments of the industry may not always show ATE insurance in the best light. Our phones still buzz with calls and texts trawling for injury victims, and unrealistic headline ATE premiums that don’t reflect any meaningful risk and only serve to undermine the wider perception of the important service that our part of the industry still provides.

The reality is that there are dependable, A-rated insurers with a solid pedigree who have continued to provide certainty to law firms and their clients in spite of the numerous challenges that have beset the ATE market in recent years.

Whatever the future may hold, the ATE sector has proved itself both remarkably resilient and highly adaptable. ARAG was founded, more than 80 years ago, on the principle that every person in society should be able to assert their legal rights, regardless of their financial means, and that principle still guides us, and many others in the industry, today.

Legal expenses insurance products, whether sold before or after-the-event, are designed to provide equal access to justice for everyone in society. When, however, the justice system itself is making it more difficult for a large segment of society to assert their rights in court, it is our responsibility to inform, advise and challenge legislators and their agencies, so that our system of justice is protected, and remains one of the fairest and most accessible in the world.

Paul Hurley, Director & Head of ATE at ARAG.

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