Courting public with legal ease

Going to court can be an expensive matter. As Albert Reynolds learned when the he sued the Sunday Times for libel, even when you win, you can lose. The jury found he had been libelled, but he was awarded only the nominal penny in damages. As the newspaper had already lodged £5,005 in court (which is normal practice), and the damages were less than the sum lodged, he was liable for both his and the newspaper's legal costs. These were estimated at £800,000.

He successfully appealed this case on the grounds of the judge's summing up, and there will now be a retrial. If he loses the retrial the price will be very high indeed.

Most people are not involved in the legal system at such a high level. Nonetheless, they may have to become involved in it for one reason or another. This might be a traffic accident, a claim for negligence against a supplier of a good or a service, or a dispute with a neighbour or a commercial competitor.

In all such cases a solicitor must be engaged and, if the case ends up in the High Court (this is determined mainly by the amount of money at stake), a barrister is usually considered necessary. In big cases there will be more than one barrister.

Under Section 68 of the then 1994 Solicitors (Amendment) Act the solicitor is obliged to indicate to a client what are the likely costs of any action. This is based on the amount of time spent on the case, and many of the bigger firms now have computerised time-recording, which records every minute spent by a solicitor on a specific client's case.

In smaller solicitors' offices the fee would still be calculated on "the weight of the file". Charges are incurred with every letter written, every phone call made, every meeting held.

If the client wins the case the judge usually awards him or her costs. But a prospective client should be warned that this will almost certainly not include all the costs.

There is a distinction between "party and party" costs and "solicitor and client" costs, and it is the "party and party" costs which are covered by the award. These include one letter and one meeting, but additional correspondence and meetings, which are usually necessary, are "solicitor and client" costs and must be met by the client.

These are often disputed, and the dispute can itself end up in court, either in a civil action taken by the solicitor or in the office of the Taxing Master. The Taxing Master is the officer of the High Court responsible for determining costs in the higher courts (the High and Supreme courts).

Mr James Flynn is one of the two Taxing Masters and he explained that some of the additional costs might arise out of supplementary claims that were made by the plaintiff, but where he did not win, or where the parties agreed not to proceed with them. Along with barrister Mr Tony Halpin, he has just written a book on the taxing of costs, aimed at explaining this arcane area to both legal practitioners and those contemplating litigation.

As well as solicitors' fees there may be barristers' fees. These are based on a "brief fee', which is the price of taking the case, researching it and preparing to present it in court, and includes the first day in court.

Subsequent days are charged on the basis of "refresher" fees, and depending on which court is involved, whether the barrister is a senior or junior counsel and their level of experience and eminence, they can range from a few hundred pounds up to £5,000 a day for a highly sought-after senior counsel.

"People often don't know what work is involved," said Mr Halpin. "Barristers could be working on a case for 12 months at 60 hours a week and would come out with less than an accountant for their year's work. They have to pay for their secretarial help, their office, their own library."

"The book does not seek to justify lawyers' costs, but to explain the basis on which we consider the issue of costs," said Mr Flynn. "What I do is governed by the law as it stands and the case law which surrounds it."

They acknowledged that there is a huge difference between the fees commanded by commercial lawyers and those involved in criminal or family law. "Another factor enters here - the client," said Mr Halpin.

"If a big commercial company is involved its very survival might rest on winning or losing. They will not tend to count the cost. They will pay so that they can be sure of the commitment of the lawyers to that case."

They may well be able to afford to do so, but this is not the case for the majority of people who might have a need for access to the courts.

A civil legal aid system exists, but to qualify a person must be entirely without resources, and certain types of cases (like employment matters) are excluded. In practice the legal aid system provides a service for those on very low income seeking help with family law problems.

Mr Flynn and Mr Halpin are aware that many people are effectively denied access to the courts by the prohibitive cost of litigation. "A person who is over the limit for legal aid should still have access to the courts," said Mr Flynn.

Indeed, in chapter three of the book they raise the question that this is a constitutional right. How would that be vindicated? "By the Department of Justice having a special section to fund cases which passed a screening system," said Mr Flynn.

This would include establishing that the litigant was impecunious, that there was reasonable grounds for litigation, that the conduct of the case was bona fide and it was reasonable to pursue it.

It is unlikely that any politician will rush to endorse this proposal - but the problem of the restriction of access to the courts by the cost of litigation is a real one.