The pre-Jackson costs regime was a necessary and appropriate response to the abolition of civil legal aid, the Law Society has argued.
In submissions to the Coventry v Lawrence Supreme Court hearing this week, the Society said that to deny claimants recoverability of success fees and after-the-event insurance would have been a breach of their own human rights.
The losing defendant in the case, stadium-owner Coventry, says it was an infringement of article six of the European Convention on Human Rights to make him pay the claimants’ costs.
A victory for the defendant – if the Supreme Court decides the pre-Jackson costs regime was unlawful – could leave the government facing a massive bill from parties in other cases who were forced to pay for insurance and success fees.
The hearing was due to finish today after submissions from eight different interveners during the week.
One intervener, the Law Society, told the court that the regime introduced after the 1999 Access to Justice Act was part of the ‘evolution’ of the system following the scrapping of civil legal aid. It contended the government was entitled to introduce recoverability to ‘strike the balance’ of access to justice.
The Society’s submission added: ‘Naturally, there may well be cases where the system has not worked as well as it should, or where the system has been abused. But that does not mean that the entire regime was flawed.’
Chancery Lane said there were many examples of classes of litigation where litigation would not have been feasible without the conditional fee agreement regime. Furthermore, the system left it ‘entirely open’ to defendants to enter into CFAs.
‘The respondents in this particular case [cannot] contend that they have been deprived of access to the court,’ it added.
‘First, and most obviously, they have fought extensive litigation including through a protracted appellate process. Secondly, even if it were established that the 1999 regime conferred an advantage on claimants, that was less of an advantage than had been conferred on claimants by the availability of civil legal aid.’
On Tuesday, the Ministry of Justice warned the court that it sent a ‘dangerous message’ to assume that the subsequent scrapping of recoverability through the Jackson reforms was a sign that the previous regime was unlawful.
‘The shift in policy shows no indication the previous policy was unlawful,’ said Tom Weisselberg QC. ‘It was a difficult balancing exercise as to how best to deal with the question of access to justice.’