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What price justice?

Small disputes involving ordinary people are not a waste of the courts’ time

This article is taken from the June 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

Nicholas and Rosemary Sherman booked a cruise to the Northwest Passage in 2018, but because of adverse ice conditions had to settle for floating off the coast of Greenland for two weeks.

They took the cruise operator to court. After losing in the County Court (with £60,000 in costs to boot), they prevailed in the High Court and, in April, in the Court of Appeal.

What distinguished the Shermans from most successful litigants there is that they were self-represented, whilst the cruise company had instructed leading and junior counsel. Some might well think it heartening that ordinary people can still obtain justice in this manner (Mr Sherman does have a law degree, which he has not used professionally). The judges took a dimmer view.

All three urged the two parties to “reach a pragmatic settlement”, but Underhill LJ added rather sniffily that the Shermans “may feel that the time has come when they would benefit from professional legal advice” — the clear implication being that the case would have been settled far sooner if they had hired a lawyer, who would no doubt have advised them better.

Understandably, the judges felt that this was one of those cases where the resources expended (11 days in three courts, with more to come) were disproportionate to the £20,000 at stake.

But as the late Lord Rodger of Earlsferry said in a Scottish case where his colleagues similarly bemoaned the fact that they had to hear the case at all, “the parties [are] adults and the dispute between them is genuine … courts exist and judges are paid to resolve such disputes, which are indeed the lifeblood of the common law”.

Increasingly, English courts seem to be taking the view that to dispense justice in small disputes involving ordinary people is a waste of their time.

In 2022, Sir Geoffrey Vos MR provoked an uproar when he appeared to suggest that parties involved in small claims (which can be worth £10,000 in the County Court) “want a swift cost-free resolution, without much caring whether the outcome is robust and dependable”.

Sir Geoffrey later backtracked, saying that he meant smaller disputes, of the sort between eBay buyers and sellers. But the same year, a pilot scheme was introduced whereby certain County Court claims worth up to £1,000 could be decided on paper without a hearing, even if the parties wished to be heard.

Again, few can quibble with the stated rationale of the pilot, the reduction of arrears caused by Covid-19. But although £1,000 must seem like a trivial amount of money to some lawyers, to many ordinary litigants it is a sum which is much more “real” than the far larger ones regularly encountered at the higher levels of commercial litigation.

The same tendency can be discerned in the criminal justice system as well. Over the past years, Tristan Kirk of the Evening Standard has been running a heroic campaign to expose the failings of the Single Justice Procedure, under which a single magistrate can convict someone of a criminal offence without a court hearing.

Lawyers used to say even the humblest subject could seek redress in court

Although all defendants have the option to opt for a normal trial, Kirk discovered that many were not properly notified of the proceedings and were therefore convicted without their knowledge.

Other convictions had to be quashed due to basic errors of law which neither the magistrate nor the prosecutor picked up on. The Ministry of Justice euphemistically refers to such miscarriages of justice as the SJP’s “error rate”.

Equally alarmingly, Kirk found out that defendants’ mitigation pleas were not seen by the prosecution, leading to prosecutions that were obviously not in the public interest.

In an illustrative case, an 82-year-old woman with Alzheimer’s was convicted for not having proper car insurance for a car that was not being driven. In another, a partially blind woman who’d had a recent brain haemorrhage which affected her memory was convicted for failing to pay for a TV licence.

Beyond the access of justice issues, the exclusion of “insignificant” cases from full court hearings also has implications for the development of the common law. In another speech, Vos declared that other legal systems were absurd for allowing a parking ticket to be contested all the way to the Supreme Court.

But as the legal academic Kate Leader pointed out, this is exactly what happened in ParkingEye v Beavis, in which the Supreme Court clarified the legality of parking charges. This could not have happened if the ticket had been dealt with under a summary procedure.

English lawyers used to price in the fact that even the humblest of the King’s subjects could seek redress in his courts. The exorbitant cost of litigation has done much to destroy this principle in practice.

As a response, the government and senior judges have determined that the best thing to do is to stop ordinary litigants from having their time in court at all. All of these developments make sense if considered in isolation. But the risk is that England’s “world-leading” courts lose sight of their principal mission.

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