Neuberger warns against mediation and defends legal aid and Jackson
The Master of the Rolls warned against mediation being used as a replacement for the courts, defended the cost of legal aid, and voiced strong support for Lord Justice Jackson’s civil justice reforms in a speech earlier this week.
Giving the annual Bentham Lecture, Lord Neuberger said that an ‘insidious’ notion exists that litigation is a bad thing, and that ‘other, more consensual means of resolving disputes are necessarily good things’.
He said that while the development of mediation had been ‘valuable’, it ‘cannot be the norm, or approach the norm’.
Neuberger said: ‘Access to the courts is not a privilege but a fundamental right.
‘But it is not merely fundamental principle which requires citizens to have access to the courts. Practicality demands it as well.
‘You cannot force people to mediate, and what if the party in the wrong refuses to mediate, or refuses to do so in good faith, or declines to be reasonable, or is simply badly advised, or takes an over-optimistic view of his case?
‘The only way the party in the right can get what he deserves, can vindicate his rights, is to go to court, and any civilized system should ensure that he is able to do so.
‘If he cannot, then justice is either not done or he must resort to violence to achieve a sort of justice. Either way, the rule of law dies.’
He continued: ‘If there is no effective access to the courts, the fundamental underpinning to all forms of dispute resolution systems, such as mediation, and even arbitration, falls away.
‘The only reason the strong and the rich will negotiate, arbitrate or mediate with their weaker and poorer opponents is the knowledge that ultimately there is the authority and power of the justice system standing behind the arbitration and mediation systems.
‘Furthermore, unless there is a healthy justice system, with judges developing the law to keep pace with the ever accelerating changes in social, commercial, communicative, technological, scientific and political trends, neither citizens nor lawyers will know what the law is… if the law is to be effective it must be known and
must be equally accessible to all.’
The judge’s comments come as legal aid minister Jonathan Djanogly recently proposed greater use of mediation rather than the courts, as a means of making cost savings - views that came under fire from family lawyers' group Resolution.
The Master of the Rolls added that it was a ‘myth’ that we live in a society ‘imbued with a compensation culture’, and it was also untrue that the UK’s legal system is ‘expensive’ compared to other countries.
He said that the US was a ‘lousy’ example of what an appropriate level of spending should be, as ‘we do not want to disenfranchise the poor as they do’.
The judge said that comparisons with European nations do not take account of the fact that, in mainland Europe, a larger proportion of spending is allocated to judges, who have an inquisitorial role.
Neuberger cited a Council of Europe study that showed that when the entire amount spent on the courts, legal aid and prosecution services was taken into account, the UK actually spends slightly less than average, compared to other European countries.
Turning to Lord Justice Jackson’s review of civil litigation costs, the Master of the Rolls gave a strong defence of the review.
He said: ‘The Jackson recommendations are based on a critical, unbiased, assessment of robust evidence.
‘They are not based on self-interest. Nor do they favour any particular interest group. They favour society as a whole’
He added: ‘Some say the Jackson recommendations were drawn in light of partial evidence.
‘But the question then to ask is: why did those who complain now about lack of evidence, not supply it during the costs review’s year long consultation?’
Comments
EU legal spending
((RE: Neuberger cited a Council of Europe study that showed that when the entire amount spent on the courts, legal aid and prosecution services was taken into account, the UK actually spends slightly less than average, compared to other European countries.))
This is very interesting and totally undermines one of the key arguments of the MoJ and also rubbishes one of the key statistical studies undertaken while Jack Straw was at the MoJ.
Please can someone - perhaps the Master of the Rolls himself - please post a link here to this study. This will provide serious ammunition to those opposed to legal aid cuts.
Found it - and not as helpful
Found the Council of Europe paper mentioned above and sadly it does not look good for legal aid campaigners. The total Public spend in E&W, NI and Scotland, i.e. the UK as a nation, on courts, prosecution and legal aid is:
UK spend = EURO 4.68bn
but, the same in every other country is lower - even France - which has a higher population:
France spend = EURO 3.69bn
And France has 62 million people, while the UK has 61 million people - so even per person this would work out more for the UK. This means that it is not just legal aid that is higher in the UK, but the entire public legal spend on courts, prosecution and legal aid. I.e. this data from the Council of Europe seems to totally undermine Neuberger's argument - which can now be seen to be patently false - and puts a torpedo into the argument for retaining current levels of spending.
Shame really, as when first mentioned really thought this was going to be useful. Oh well.
http://lawyerwatch.wordpress.
http://lawyerwatch.wordpress.com/2011/02/26/mediation-a-review-of-the-research-evidence/
MR correct about Mediation.
But one reason the spend is so high is that we take more people to Court than other countries.
Unbelievable hypocrisy
Unbelievable hypocrisy recently from all these New Labour luvvie judges.
For about 15 years we've had a stream of judge-made law giving "rights" and endless permissions to Judically review to anyone provided that they are of sufficient minority status, all armed with Legal Aid and with tasty brief fees for their fellow-travellers in Chambers.
Only now do they realise that their absurd liberalisation of "rights" to anyone with a chip on their shoulder and minority status has bankrupted the Legal Aid coffers.
I for one think it's wonderful that these wretched creatures will now have to deal with their own mess, as litigant in person after litigant in person creates mayhem before M'Luds...
Council of Europe study
The Council of Europe study (by the European Commission for the Efficiency of Justice) can be found here: https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694098&SecMode=1&DocId=1653000&Usage=2
While the UK spends more (gross figure) than anyone else on legal aid, it spends less on the courts and on public prosecutions - which is where the costs tend to be weighted in inquistorial rather than adversarial justice systems.
The Ministry of Justice reform proposals apply only to England and Wales. The total spend in E&W on courts, public prosecutions and legal aid is €4.087bn, less than in Italy (€4.282bn), and only slightly higher than Spain (€3.906bn), which of course has a much lower population - see the table on pp 16-17 of the study.
When it comes to the total public spend per head, E&W is nowhere near the top - behind Spain, Switzerland, Austria, Belgium, Netherlands and Slovenia, and only just ahead of Sweden and Italy (see p 41).
And in terms of total spending as a % of GDP per head, E&W is pretty much average - around the same as Netherlands, Russia, Monaco and Spain (see the table on p 42).
Lord Neuberger's comments, therefore, are not 'patently false' as the poster above suggests.
The Council of Europe study has a far larger sample size than the MoJ-commissioned University of York study, which uses only 4 European comparators (France, Netherlands, Germany and Sweden) plus Australia, Canada and New Zealand. The authors of the York report themselves acknowledge that it is not a full comparative study and its statistical data is limited. However the MoJ seems to have followed the York report, with its flattering (to them) choice of comparator countries (a selection made by the MoJ!), and ignored the Council of Europe figures.
The York study can be read here: http://www.justice.gov.uk/publications/docs/comparison-public-fund-legal-services-justice-systems.pdf.
Go compare
Neuberger said 'the UK's spend on legal aid, prosecution and the courts' - i.e the UK as a whole, ie.e E&W, NI and Scotland - when you compare UK to other EU nations we do spend far more.
To compare just E&W vs other countries like France or Spain doesn't make any sense. That's like just comparing the North of France with E&W or just Catalonia with E&W.
The Council of Europe study looked at national spending - and the UK does proportionaly spend more than any other country in the EU on the total for 'legal aid, prosecution and the courts'.
Neuberger's argument - which is a clever one I'll admit - is that because in Civil Law countries the investigating magistrate does a lot of the work, they spend just the same as the UK at the end of the day. But the figures disprove this.
The only thing to say to the poster above that might be true is that if you take ONLY E&W the total spend is for 53m people and comes in at EURO 4.087bn. France, which has 62 million people has a total spend of EURO 3,69bn. So even on this score E&W is more expensive and even with a far less people.
Or put it this way, per person cost in E&W = EURO 77
in France = EURO 59.5
Any way you cut the numbers it comes back with the same answers - the UK 's or just E&W's justice system is more expensive that those that oeprate in Western Europe. Therefore, and QED, Neuberger's argument is patently false.
EU Study
Firstly, the report can be found using the link at the end of this comment (sorry not properly hypertextlinked). For ease of reference you need pages 15-48.
It isn't actually as bad as RT suggests. It does support what Neuberger says, namely that when the entire amount spent on the courts, legal aid and prosecution services was taken into account, the UK actually spends slightly less than average, compared to other European countries. (actually it shows we are exactly average - Fig 2.23 but slightly below average if you exclude prosecution costs Fig 2.21)
Although we spend more than France in absolute terms, as pointed out by RT, the more helpful figure I would have thought is the % of GDP per capita spent on courts / prosecution / legal aid, in which Fig 2.23 demonstrates we are average as at 2008. What Fig 2.24 also shows is that compared to an average increase of c25% upwards in this spending, UK E&W experienced a reduction in spend between 2006 and 2008 of a staggering 29.5%, beaten only by Ukraine and Iceland (although the footnote to this table suggests some of this is an artificial impression created by exchange rates).
Fig 2.26 shows that whilst we spent almost 12% less on legal aid by 2008 as compared with 2006, we spent 33.5% more on prosecution.
On our prosecution spend - we are below average when you look at spend as a percentage of GDP per capita (Fig 2.13) but above average when one looks at the absolute spend per capita, with only half a dozen countries topping us (one of them being Scotland).
I'm no statistician, but I would argue that this report is supportive (if not probative) of these propositions:
We spend quite a lot on prosecution. This may be in part due to inefficiency, but in any event is likely to be a driver itself of legal aid spending.
Legal aid spending has been shrunk massively already. The figures in the report do not factor in significant cost cutting since 2008 incidentally. Even if we don't look so hot on a league table the real question is not what our neighbours are doing but what we are doing: what further costs cutting can the system bear without our justice system failing to do justice? We might not actually aspire to create a justice system like some of our European neighbours, many of which are either less well respected or which have very different costs because they operate on entirely different legal models.
https://wcd.coe.int/wcd/com.instranet.InstraServlet?Index=no&command=com.instranet.CmdBlobGet&InstranetImage=1694098&SecMode=1&DocId=1653000&Usage=2
Better Late Than Never
What a surprise! Those in "the pruple lifeboat", our wonderful judiciary, are now scared of the future, just as we solicitors are about to be tipped over the precipice. Linda Lee, you have the strongest possible hint here. JR the government over legal aid and you will, most probably, win. It is a human right, after all, according to Lord Neuberger, to be able to go to court.
Neuberger is the most modern judge at his level but none of them understood that they had to stand up to "New Labour" or face the endless tribes of litigants in person. They will have their "Advocates to the Court" but how long before the Ministry of Justice stops that?
Who is going to "do the bundles" or be "the whipping boys" when solicitors and most of the junior bar have gone.
The problem, as always in this country, is snobbery. If barristers had had to run businesses then they would have understood the problem with the Legal Services Act 2007 and acted accordingly.
There is still this ridiculously sniffy attitude to the US. CFAs allow poor US litigants to litigate. The problem in the US is with criminal costs stopping proper defences, not civil costs.
The sniffy attitudes towards CFAs riddles Jackson's report. Again, pure snobbery and no understanding that if you stop the rewards you stop the talent.
We are trapped in a politically correct version of the 19th century, in the judicial mind, where commerce is denigrated and the rights of the lowliest foreign terrorist comes before the rights of the individual solicitor (look at human rights cases involving the former and those involving the latter). This is unsustainable and will have to change. Time that the senior judiciary realised that the whole legal profession needs to work in tandem and be protected.
However, it may be too late.
Never mind all the
Never mind all the statistical arguments ; the legal aid bill is relatively high here because public authorities in the UK persistently fail in their duties and people need recourse to law and lawyers to redress those injustices. The Baby P case is merely the sensationalist tip of the iceberg. As a solicitor in the public law field, these failures recur ad nauseum.
The major answer ? Giving local government back its self-respect and real autonomy. Fat chance, I know..........
Judge in pro-litigation comment shocker
Wouldn't it be nice to read that one or two senior judges could actually see the huge benefits of mediation and ADR and the disadvantages of the adversarial system without delivering a fudged message. Words such as "Mediation doesn't suit everyone" or "It's not a panacea" seem to trip off the tongues of many ADR sceptics in a way which shows how desparately worried so many lawyers are about maintaining their status as the hub of the family dispute resolution wheel.
How about, just for a change, judges and lawyers welcoming the changes and suggesting instead that "Litigation is not suitable for every case" and "Adversary is not a panacea". Seems unlikely, doesn't it?
Mediation
Confused much?
"Increasing the use of mediation and other forms of ADR to help individuals resolve their disputes is a social good. The consensual resolution of any dispute is a social good."
http://www.judiciary.gov.uk/NR/rdonlyres/1437BE8B-BC0D-410F-9585-847666B973DF/0/mojspeechmediationlectureA.pdf