Access to justice for disabled people

At this time of year, all the political parties are promising the earth and a pound besides, for our votes. I have read with interest the various manifestoes and announcements on what they will do (or not) for the justice system, if elected.

None of them are offering much for disabled people seeking to obtain access to justice, whether through better public funding or simple conceptual reforms which could make a great difference to access to justice.

Up until 2013 as a barrister, I represented over the years a number of claimants, who brought cases for disability discrimination in the civil courts, alleging discrimination in the provision of goods and services, or a public function or education under the Equality Act 2010.

The disabled claimants were usually dependent on social security benefits or if in work, on modest incomes and had little by way of capital. Some did have homes, with equity however.

The defendants were usually local authorities, blue chip companies, or NHS trusts.

The claims were often modest: a few thousand pounds in compensation for injury to feelings, with the principal remedies sought usually being a declaration or an injunction. Occasionally a case was more significant: prolonged discrimination or harassment, can result in clinical depression, and a psychiatric injury being sustained.

I represented them on the basis of a conditional fee agreement as did my instructing solicitor and ATE insurance was effected on their behalf. The premiums were often large: often into five figures, by reason of the unusual nature of the claims.

After April 2013, as I anticipated  ATE insurance became either unavailable, or prohibitive in its cost and not a practical option. The problem this created can be simply stated.

Unless effective costs protection could be put in place however strong, a case may appear, I could not reasonably advise such a client to take the risk of issuing proceedings and potentially facing an adverse costs award.

This is classically asymmetrical litigation, between a vulnerable claimant and a well funded, well resourced defendant able to pay their own costs. The problem could be avoided, if one could be confident such a client and such a case fell within the Qualified One Way Costs Shifting regime (QUOCS).

And this is the difficulty.

A client who suffers clinical depression, and psychiatric injury, will undoubtedly attract the benefit of costs protection as envisaged under the new regime.

But a client who is more robust mentally, suffering only injury to feelings, may not qualify for costs protection, even though suffering the same discrimination.

The ambiguity arises from the current definition of a personal injury in the Civil Procedure Rules. Rule 2.3 defines a claim for personal injuries as follows:

claim for personal injuries means proceedings in which there is a claim for damages in respect  of personal injuries to the claimant or any other person or in respect of a persons death, and personal injuries includes any disease and any impairment of a persons physical or mental condition;

The question I pose is whether  injury to feelings, attracting an award of damages is included in the definition of “any impairment of a persons physical or mental condition”. It is not immediately apparent (at least to me) whether it is or it is not.

If it is, then the disabled claimant will enjoy costs protection. If it is not, they will not and immediately they face an insurmountable hurdle to obtaining access to justice. There would be little logic in such a result.

The position could be put beyond doubt by tweaking the definition to read:

“any impairment of a persons physical or mental condition including injury to their feelings.

This would remove the anomalous position, that one set of circumstances giving rise to claims for discrimination by a number of claimants may result in some enjoying costs protection if they develop depression in consequence, and others not at all.

If I had the opportunity to put forward a reform which would increase access to justice without costing the Ministry of Justice a pound, then this is the reform I would propose.

Setting aside default judgments and costs certificates

For many years, the principles on which a judgment or default costs certificate would be set aside, were relatively straightforward. If a judgment or costs certificate was regular, in that it had been obtained in compliance with the rules, and due to the fault or omission of the defendant or paying party, the court would set aside the judgment or costs certificate, if the party in default could show reasonable celerity in making their application and something to argue about on the merits. In 99% of cases, the court would award costs against the party in default: in recognition that the claimant or receiving party was being deprived of a regular judgment, and the court was exercising the prerogative of mercy. Applications to set aside thus created an opportunity to hold on to what had been won, and the opportunity to earn a few hundred quid in costs. Irregular judgments or costs certificates, were of course liable to be set aside as of right.

Within the last couple of years, however, the reformulated rule 3.9 and overriding objective, together with the Mitchell line of authority, have meant resisting applications to set aside regular judgments or costs certificates are now thwart with peril. One District Judge observed to me, that given that the parties can and are encouraged, to agree extensions of time of up to 28 days, if an application to set aside is made within 28 days it is made promptly, and should be consented to. Otherwise, the holder of the judgment is likely to be made to pay the costs.

The source of this attitude is readily to hand. In Denton the Court of Appeal made these observations:

  1. Justifiable concern has been expressed by the legal profession about the satellite litigation and the non-cooperation between lawyers that Mitchell has generated. We believe that this has been caused by a failure to apply Mitchell correctly and in the manner now more fully explained above.

The Court of Appeal went on:

  1. Litigation cannot be conducted efficiently and at proportionate cost without (a) fostering a culture of compliance with rules, practice directions and court orders, and (b) cooperation between the parties and their lawyers. This applies as much to litigation undertaken by litigants in person as it does to others. This was part of the foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3 provides that “the parties are required to help the court to further the overriding objective”. Parties who opportunistically and unreasonably oppose applications for relief from sanctions take up court time and act in breach of this obligation.
  2. We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).
  3. It should be very much the exceptional case where a contested application for relief from sanctions is necessary. This is for two reasons: first because compliance should become the norm, rather than the exception as it was in the past, and secondly, because the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred.
  4. The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget.

These paragraphs are a powerful weapon in the hands of the party seeking to set aside a regular judgment or costs certificate: they indicate that refusal to consent may have costs consequences going far beyond the instant application and indeed allow defendants and paying parties, to springboard a counter attack, by asking a judge to record unreasonable conduct in the order, and gaining a substantial costs windfall, later in the case.

Proportionality and provisional assessment

Reading Points of Dispute, particularly those which are submitted for a provisional assessment, I am struck by how frequently, I see “General Point One” pitched as a challenge to the Bill of Costs on the grounds of proportionality. Sometimes the body of the point of dispute, goes on to witter about a test of necessity.

This is all charmingly antique.

The new test of proportionality (which is now more than two years old) simply requires a costs judge to go through a bill looking at the items incurred on the basis of a test of reasonableness, and then and only then, having conducted a reasonableness based assessment, consider whether the bill should be further reduced on the grounds that the costs, although reasonable are disproportionate in relation to the subject matter of the case.

But old habits die hard, and although the new test of proportionality is conceptually clear, the rules on provisional assessment seem designed to frustrate its easy application by costs judges.

This can be demonstrated in a number of respects

The first point is to note that the courts still require the submission of a paper Bill, paper Points of Dispute and paper Replies, with space for a Costs Judge’s comments, on which he laboriously scratches his rulings in hieroglyphics.

The submission of a claim for costs in a digital spreadsheet form, incorporating three columns for both sides contentions and the courts ruling, is not currently on the horizon. The use of a spreadsheet (hardly a novel aid to efficiency) would of course, enable adjustments to hourly rates or other items to be carried through to a revised total in the bill.

The second is to note that absent some honourable exceptions in the Senior Courts Costs Office, costs judges do not work out the mathematical consequences of their rulings on reasonableness.

Hence when they have gainfully used the 40 minutes alloted to them by the court service for each provisional assessment, they do not know, what the running total of costs that they have allowed to that point actually amounts to. Without knowing what the total amount of costs assessed to be reasonable to that point is, then they simply cannot apply the test of proportionality, lacking that crucial data.

How can this problem be addressed within the current constraints of the rules? It seems to me that it could be addressed in two ways.

The first is for practitioners to recast their case on proportionality and put the proportionality point at the end of the Points of Dispute and suggest a figure, for what they contend is a proportionate sum for the total sum of costs to be allowed notwithstanding any conclusions on the reasonableness of individual items.

In effect instead of asking a costs judge to rule that costs are proportionate or disproportionate, to rule what figure would be a proportionate award of costs. In a sense, this is not only the ultimate question on assessment, it has the potential to be the only question.

The second is to specifically ask the costs judge not to rule on proportionality, until the maths has been done by the parties, on the basis of his conclusions on the reasonableness of individual items. Then and only then, will he be able to conclude whether the costs as allowed to that point are proportionate or whether a further reduction is required.

In effect to have a provisional assessment in two parts: given that the rules envisage to-ing and fro-ing for part 36 purposes, this would not run against the conceptual grain of provisional assessment.

Of course, all this presupposes that costs judges are actively engaged in provisional assessment, that they assiduously read Points of Dispute and Replies, and make findings accordingly.

If as a question of fact, they by and large ignore the documents apart from the Bill of Costs, and conduct a rough and ready summary assessment, in their alloted 40 minutes, then it may be time to rethink how costs are assessed on a more fundamental level.

Fixed costs anyone?