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?’
- Neuberger defends judges’ right to speak out on cuts
- HRA applies to soldiers on duty, Supreme Court confirms
- Hundreds face ‘unrated cycle’ as Balva fails
- Consumer panel promises ‘long game’ on will regulation
- Close down CMCs tomorrow - Desmond Hudson
- Wiltshire solicitor’s murderer jailed for 28 years
- Profits squeeze as top-50 firms open results season
- Prison term sought for quoting Society charity report
- Legal aid champion Storer honoured
- Hudson questions SRA’s firm finances disclosure
- Judges could quit over pensions
- Intervention row heads to Strasbourg
- Hunt begins for new SRA chief
- SRA ‘wrong to pursue costs via conduct rules’
- Jackson prompts spurt in law firm start-ups
- Legal aid cuts ‘end high-profile BME cases’
- Carbon footprint down 7% in legal sector
- Mystery surrounds legal training report
- Family lawyers divided over Prest decision
- Consumer rights boost welcomed by Society
- Old Bailey offers peek at ‘Dead Man’s Walk’
- Peer-to-peer pioneer
- EC in cartels drive
- Thousands of court workers to strike on Monday
- RTA claims still high despite referral fee ban
- Law firms warned on debt recovery
- Ombudsman claims wider territory
- SRA puts a price on extra intervention levy