I Hope that the Us Government Thinks Again
Litigation - the right or perhaps unaffordable luxury?
This week (Monday 30th January) Peers will discuss part 2 in the Legal Aid Sentencing and Punishment of Offenders Bill in the home of Lords. Included within part 2 are proposals that will prohibit the recoverability of ATE premiums.
This proposal will, I think, make it difficult for SMEs, and individuals, to litigate against better resourced opponents. Not only will this become a substantial deterrent to justified claims nevertheless it can also get a detrimental influence on Treasury revenues.
When introducing the Bill inside your home of Commons last year, god Chancellor stated that “there is too much financial litigation“. This is because absurd since the Home Secretary saying “there is way too much policing”. The commercial and social wellbeing of the nation mandates that the citizen can enforce regulations for himself. The us government also claims that there is a lack of balance in the courtroom system. I believe that that precisely what is balanced or otherwise not will depend upon the circumstances associated with a particular case and also the method of the parties.
However, whilst largely dependant on an absolutely false look at the litigation landscape, the Government’s position is not wholly without merit. It is the situation that ATE insurance premiums improve the total price of litigation. It can be the truth that a well-funded party can nevertheless buy ATE insurance and so impose even more pressure on his opponent who may already be weaker. It’s however far from the truth that abolishing recoverable ATE premiums will restore balance as the government claims, neither is it true that there’s a compensation culture exploited by irresponsible and dishonest claimants.
History has demonstrated it is difficult to cut the expense of English civil litigation. Many have tried without success. What is essential is perfect for everyone to have the way to deal with the price. Some tips i suggest is that the balance needs to be achieved from the people used by the purpose, namely the judiciary, not by legislative changes of omnibus, and thus necessarily unfair application.
I believe the answer then is to allow for ATE insurance with recoverable premiums where it is vital to do so to stop hardship.
Judges already are beginning look hard in the costs of litigation at the outset of in a situation - with cost estimates for the overall case now being commonly supplied at an early stage in the proceedings. It would therefore be not at all hard for that judge to check out the way of the parties and also to authorise ATE insurance with recoverable premiums to redress the check where appropriate.
The opportunity might additionally be studied for judges to exercise their powers to cap costs in the beginning from what they consider to be reasonable amounts. This has to be balancing exercise at the outset of true, avoiding the trials of financial strength which can be a common feature of contemporary English litigation.
The goal towards greater effectiveness and efficiency in the legal aid product is laudable, but an authorized system that does not help those involved with need to get access to justice is a system that may, ultimately, be less efficient and expense more.
In a civilised society, access to justice is the right from the citizen. It won’t deserve to be coloured by political invective about “compensationitis”. I hope that the us government thinks again, amends the balance before it is too late, and retains the availability of ATE insurance for those who need it.
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