51st state

Rough winds are currently shaking the darling buds of May. As the third anniversary of the referendum result approaches, the country appears no nearer a resolution to the great political issue of the day.

A little while ago, out of historical interest and to remind myself, of how things appeared 3 years ago, I disinterred the government’s leaflet published as part of the debate on the Leave/Remain vote and a copy of it can be found here: why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk.

I suspect that little will have changed in the last three years, in terms of the evidence base, which doubtless underpinned the arguments put forward by the government (of which the current Prime Minister was a senior member) in that document, to remain in the European Union.

What  counts heavily against regarding matters in 2019 simply in terms of the economic case set out in the document, is the unequivocal assurance also contained in that leaflet, that the government would implement the result of the referendum.

As the government is now finding out painfully to its cost, there are multiple ways of leaving or almost leaving the European Union, and it is now readily apparent that the referendum result only provided 50% of the guidance that the government probably required.

It may be that what happens in the end, is a traditional British compromise leaving everyone vaguely unhappy: namely that the United Kingdom leaves the European political union, but remains effectively part of the common market: in which case it will remain a “rule taker” from the European Union, as opposed to becoming something closer to the 51st state of the USA and a “rule taker” from America.

We shall have to see how things pan out but the current logjam can’t last forever: as the recent conclusion of Game of Thrones demonstrates, all good things must come to a sticky, possibly even bloody end at some point.

In any event I predict that whether the United Kingdom opts for remain, leave or fudges a messy compromise in between the two extreme positions, European jurisprudence will remain an important influence on United Kingdom law, for many decades to come, both in terms of the actual decisions of the European Court of Justice but also the decisions of the European Court of Human Rights; not least on questions of access to justice which are particularly relevant to matters of costs and litigation funding.

At the end of the day, the purpose of an inter partes costs regime, and the availability of litigation funding is to facilitate access to justice.

That is why it exists and the worth and efficacy of any rule relating to costs should  be judged according to whether it facilitates access to justice or hinders it.

A European publication caught my eye recently and can be downloaded here: Handbook on European law relating to access to justice. It is an excellent summary of the extant ECJ and ECHR caselaw on the topic of access to justice and it also puts forward some interesting thoughts for the future, and what issues are likely to become apparent when considering matters of access to justice in the years to come.

One issue that might come to prominence in the next few years is the digitisation of the justice system: in particular how will that affect those poorer and less well educated sections of the public who may be left behind by moving the courts and justice processes into cyberspace? As the Handbook notes:

Under CoE law, the ECHR establishes no specific requirements in relation to e-justice, but implementing e-justice initiatives is subject to the rules on access to a court and the right to a fair trial under Article 6 of the ECHR.

In Lawyer Partners a.s. v. Slovakia, 637 the applicant, a private limited company, wished to lodge over 70,000 civil actions for debt recovery. Given the huge number of claims, it recorded them on a DVD and sent them to the court with an explanatory letter. Though domestic law allowed filing the claims in this manner, the court refused to register them on the ground that it lacked the necessary equipment. A complaint to the Constitutional Court was rejected as having been lodged outside the statutory two-month time limit. The ECtHR noted that, if printed, the company’s actions and supporting documents would have filled over 40 million pages. In such circumstances, its choice as to the means of filing could not be considered inappropriate. Domestic law provided for the electronic filing of court actions and the applicant company could not be criticised for having availed itself of this possibility. The courts’ refusal to register its actions was a disproportionate limitation on its right of access to the court.

The EU’s “electronic one-stop shop in the area of justice”, the European e-Justice Portal, currently allows individuals to make cross-border small claims or payment orders electronically, in accordance with relevant EU secondary law, in EU Member States participating in e-CODEX (a large-scale project designed to improve access by individuals and businesses to legal means across borders – specifically online handling of cross-border legal procedures). Regulation No. 1896/2006 established a procedure for a European Payment Order (EPO).

However, not everyone may be able to access technological developments, so it is important that these exist alongside traditional systems. The CJEU has confirmed that procedures accessible solely by “electronic means” may make it impossible for some people to exercise their rights.

In Rosalba Alassini v. Telecom Italia SpA,644 the CJEU considered four joined preliminary references from the Giudice di Pace di Ischia concerning clauses under which an attempt to settle out-of-court was a mandatory condition for certain disputes to be admissible before national courts. The clauses were enacted pursuant to the Universal Service Directive.

….In considering this point, the CJEU also noted that exercising the rights conferred by the Universal Service Directive might in practice be impossible or excessively difficult for certain individuals – in particular, those without access to the internet – if the settlement procedure could only be accessed by electronic means.

As the court system moves more quickly into the 21st century, it must not forget those whose limited technological resources are still rooted firmly in the 20th.

Readers of the Handbook will also find some interesting material within it on court fees: which may yet become a further cause celebre in domestic litigation.

One comment

  1. “[…] It may be that what happens in the end, is a traditional British compromise […]: namely that the United Kingdom leaves the European political union, but […]will remain a “rule taker” from the European Union, as opposed to becoming something closer to the 51st state of the USA and a “rule taker” from America. […].” In short, this is a no-win situation?

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