Cap on legal case costs would be in the public interest
Fear of financial ruin dampens the pursuit of justice – the law must correct this
“In addition to protecting the rights of citizens between themselves, the right of access to the courts is a vital protection of the public interest when a member of society aims to restrain or challenge the powers of the State or the might of big business – both of which have deep pockets.” Photograph: Bryan O’Brien
In its latest assessment of Ireland’s bailout programme, the EU-IMF troika has again called for reform of the legal system and a reduction in legal costs. These are seen as an obstacle to business, and the troika is pushing for the speedy enactment of the Legal Services Regulation Bill to be debated in the Oireachtas on Wednesday.
But if high legal costs are a problem for business in Ireland, they are an insurmountable obstacle for many individuals, especially those with little money, in accessing justice or vindicating rights.
Access to a court is not the same as access to justice. The fundamental human right of access to justice is much broader. It will enable people to operate in an environment where they know and understand the law as it affects them and will ensure the State’s protection, promotion and vindication of their fundamental human rights. Sometimes it is also about access to a court to deal with disputes and redress wrongs where these cannot otherwise be resolved.
In such cases, people need to be able to get to a court, without undue delay, and be represented by lawyers who understand and can apply the law on their behalf.
Deep pockets of power
But in addition to protecting the rights of citizens between themselves, the right of access to the courts is a vital protection of the public interest when a member of society aims to restrain or challenge the powers of the State or the might of big business – both of which have deep pockets .
For those who are not very rich, the cost of going to court is often chilling and, ultimately, a freezing-cold fear that stops them from pursuing their claim for rights or justice.
In many challenges to State power, even in important issues of rights, the person suing may lose the case. Not only do you have your own lawyer’s bills, but you could also be pursued by the State or the institution being sued for its legal expenses.
We have to salute the courage of those people who have something to lose when they stand up to a State body or institution to pursue their rights. We must also salute the lawyers who act for people in such cases, knowing they do it pro bono or for minimal return.
But it is not an adequate protection for any fundamental right to have to rely on finding such brave people who understand their rights, or indeed on the generosity of individual lawyers.
It is not just a problem for Ireland. In every country, the law is made by those who are in power and administered by those with a vested interest in staying in power. Challenging this power is never going to be easy. But the need to have systems to challenge oppression and abuse of power is everywhere recognised as central to democracy. This is why access to justice is now promoted universally as a vital part of development.
Irish law can learn from the experience of other countries in ensuring people can make legal challenges to power. The North American concept of a “class action” allows aggrieved parties to unite to make a common complaint against a more powerful opponent. It is particularly useful in consumer law cases where the value of each individual’s claim may be so small that it is impractical to bring a single case.
Class action impossible
With no system for class actions in Ireland, each individual with a grievance has to bring his or her own case and have it dealt with discretely. It wastes court resources, requires both sides to repeat themselves again and again, builds up expenses and ultimately deters the poorer person from accessing justice.
Other countries have found a way to cap the cost of legal proceedings taken in the public interest. In Ireland, a judge might decide not to penalise an unsuccessful claimant with a big legal costs bill, on the basis the case was in the public interest. But that decision comes right at the end of the litigation process – and a plaintiff may have abandoned the case for fear of ruinous costs. In England and Wales, however, such cases often start with a discussion about whether they are in the public interest and, if so, at what limit the costs will be capped, even if the plaintiff loses.
In Ireland, we now have a unique opportunity to reform our legal system. Our Legal Services Regulation Bill has been requested by the troika to increase competition in and access to legal services, among other things. On its first outing in late 2011, the Bill was very much focused on increasing competition between the big commercial firms.
It is now due for revision and discussion in the Oireachtas. Free Legal Advice Centres has submitted proposals for amendments to allow the courts to cap costs in public interest cases and has suggested there should be proper consideration of class actions.
Let’s hope these appear in the amended version.
Noeline Blackwell is director general of Flac. Its proposals on legal services can be found at iti.ms/1d6oQCb