The courts, like the Ritz Hotel, are open to all.
People who suffer a personal injury in England and Wales and then to seek claim damages for their injury and losses are in a privileged position. They can readily instruct solicitors to prosecute their claim. There is a substantial part of the legal profession who provide a well of expertise to draw upon. There are protocols and portals to make the process easy and efficient. The fees that solicitors can charge are regulated by statute, with maximum limits on the success fees that can be claimed. Above all, if litigation ensues and an honest claim for compensation fails, a litigant is “held harmless” from the costs consequences of the failed claim through the mechanism of Qualified One Way Costs Shifting (QOCS).
The existence of QOCS cannot be overstated. It ensures peace of mind for the injured person, and forces a tortfeasor to consider at an early stage whether it truly wishes to defend a claim, knowing that the probability is that even if it’s stance is vindicated it will be left with an irrecoverable legal bill. I suspect this in turn means, that many marginal claims are settled on a pragmatic basis, but that is simply my feeling: there is important as yet undone research that needs to be undertaken on the effect of QOCS on litigation behaviour.
Conversely, other litigants are in a much less privileged position. Someone who has a dispute with their neighbour and needs to take proceedings, will face the uninviting prospect of litigating with a substantial adverse costs liability should the action fail, and if they cast around for ATE insurance to insure against that liability may find that either such insurance is unavailable, or only available at prohibitive cost. They may not feel able to litigate at all. “Good”, I hear you instinctively say. Why do the courts need one more neighbour dispute, which is often no more than an exercise in bloodymindedness? What does it matter?
A moment’s thought reveals that it matters a great deal. If people cannot or dare not use the courts to litigate, there is an ancient tradition of “self help” in this country, of “bills and bow” which leads inevitably to a break down in confidence in the justice system and in turn in law and order. Moreover, for the law to grant people rights, often in complex statutes and impenetrable case law and yet to fail to afford them the means to vindicate those rights, is a denial of justice. The rights become meaningless. The courts like the Ritz Hotel, may be open, in theory, but not in fact.
Going beyond the neighbour dispute, the victim of environmental pollution, the victim of unjust harassment, the individual challenging a public authority by judicial review, who does not qualify for Legal Aid, and the victim of disability discrimination, all face the invidious dilemma that although Parliament and the common law may have given them rights, the deterrent effect of fear of an adverse costs order, which they can neither pay nor defray through insurance may deny them a remedy.
The logical position where there is asymmetric litigation, would be to extend the QOCS provisions to cover all these sorts of claims: the claims brought by the little guy against the big battalions of government and industry. But there is no sign that this will be done either immediately or ever.
It was therefore of considerable interest to me, to read the decision in the case of R v The Lord Chancellor exp Esther Louise Leighton  EWHC 336 (Admin) which was an attempt by way of judicial review brought by a disabled person, to get the ball rolling in respect of a QOCS scheme for disability discrimination claims brought in the County Court. The facts and the issues were stated thus:
3. The Claimant is a disabled person within the meaning of the Equality Act 2010 (“EA 2010”), section 6. She is a full-time wheelchair user. Over the last few years, she has frequently issued proceedings in the County Court, mainly as a litigant in person, against service providers. These claims have mostly taken the form of complaints that shops, cafes, etc have discriminated against her by not providing ramps for wheelchair users, meaning that wheelchair users cannot gain access to the premises. This is potentially in breach of the statutory duty to make reasonable adjustments in relation to service provision, which is to be found in the EA 2010, section 29, read with section 21 and Schedule 2 of the Act.
4. I will summarise the issue that is at the heart of these proceedings in greater detail a little later in this judgment. In essence, however, the claim is concerned with the costs regime that applies to discrimination claims relating to the provision of services, when such claims are allocated to the fast-track and multi-track in the County Court (the County Court is the forum for discrimination claims outside the employment and non-disability education fields). As a result of reforms that were introduced by LASPO, it is no longer possible for a Court to order an unsuccessful defendant in such proceedings to pay the “success fee” to which a successful claimant’s lawyers may be entitled if the claim succeeds and the lawyers are instructed under a Conditional Fee Agreement (“CFA”), or to pay the cost of After the Event (“ATE”) insurance premiums. For reasons that I will explain, this means, the Claimant says, that disabled persons like her who wish to take legal proceedings to enforce their rights against service providers face two very serious impediments. The first is that if their claims end up in the fast-track or the multi-track (rather than the small claims track, in which costs are not usually recoverable), and they do not qualify for legal aid, they are at risk of an adverse costs order. Given that the damages recoverable for claims such as these tend to be small, but the costs incurred by defendants may be significant, this operates as a real deterrent. Claimants cannot realistically protect themselves by using ATE insurance, because the cost of the premium will be prohibitive, especially if it cannot be recovered by means of a costs award against the defendant. The second impediment is that it is very difficult, and may be impossible, for a claimant in a disability discrimination claim in the County Court to find solicitors and counsel who are prepared to represent them. Ordinarily, solicitors and counsel in such cases will seek to be paid by means of a CFA, but, as the success fees which are a central feature of CFAs can no longer be passed on to defendants, and damages are generally low, this means that the lawyers cannot be confident that their clients will be able to pay the success fee, even if they win. The Claimant says that she is now effectively deterred from seeking to enforce her rights as a disabled person in relation to the provision of services in the County Court.
5. These problems are not unique to discrimination cases. In the personal injury field, their effects have been mitigated by QOCS. In short, the effect of QOCS is that the claimant knows, when the litigation begins, that, unless s/he behaves wholly unreasonably or fraudulently, s/he will not be required to pay the defendant’s costs if the claim is unsuccessful (unless the claimant recovers some damages, in which case the costs will not exceed the amount of the damages), but the defendant will be required to pay the claimant’s costs if the claimant is successful. QOCS was introduced for personal injury claims by changes to the Civil Procedure Rules (“CPR”), in CPR r44 13-17. Outside the personal injury field, the changes in LASPO, which generally worked to the disadvantage of claimants, were not mitigated by the introduction of QOCS.
6. The operation and impact of LASPO was reviewed by the Ministry of Justice in the Part 2 PIR in 2019, some six years after the changes came into effect. The Part 2 PIR dealt briefly with the question whether costs protection, which might include QOCS, should be extended to discrimination claims. The Claimant says that the effect of the Part 2 PIR was that the Defendant took a decision not to extend QOCS to discrimination claims. The Claimant submits that this decision was unlawful on public law and/or Human Rights grounds. Alternatively, the Claimant says that, in any event, even if no positive decision was taken at the time of the Part 2 PIR, it is clear that the Defendant has failed to extend QOCS to discrimination cases and this, too, is unlawful.
7. The Claimant relies on five grounds. These are that the decision not to extend QOCS to discrimination claims and/or in failing to extend QOCS to discrimination cases was unlawful because:
(1) The Defendant failed to comply with the Public Sector Equality Duty;
(2) The Defendant (a) acted irrationally, (b) failed to take account of relevant considerations, and (c) failed in his duty of inquiry;
(3) The Defendant is in breach of Article 6 of the European Convention on Human Rights (“ECHR”), introduced into UK law by Schedule 1 to the
Human Rights Act 1998;
(4) The Defendant is in breach of Article 14 of the ECHR, read with Article 6; and/or
(5) The Defendant is in breach of the common law right of access to a court.
Of the various grounds, given the increasingly nebulous quality possessed by the PSED these days, the most interesting were grounds 3 and 5, which concerned the question as to whether there was a “gap” between the rights given to an individual and the practicality of enforcing them. In the event, the High Court rejected the arguments under article 6.
122. Applying those principles, and that guidance, to the issue in the present case, I conclude that the current costs regime as it applies to discrimination cases in the County Court passes the test of proportionality. It is not perfect, and there can be little doubt that it has a deterrent effect for some claimants in some cases. However, as the Supreme Court observed in Lawrence, there is no perfect solution to the problem of balancing interests and enhancing access to justice. It is a rational and coherent scheme which has been carefully thought out, and it was introduced after the commissioning of a report by a distinguished judge, and after extensive consultation. The legislature and those who make the CPR are better placed than an individual judge to decide how to effect the reforms and to strike the appropriate balance.
123. Looking at the first part of the four-stage test set out in Bank Mellat and adopted in Lawrence, the five stated aims are sufficiently important to justify the limitation of a protected right. It is common ground that the right of access to a court is not absolute, even for rights relating to discrimination, and some sort of costs regime is necessary. Objectives such as reducing costs and promoting access to justice are important ones. It is an unfortunate but unavoidable feature of the aims that they conflict to some extent. Measures that promote access to justice for a claimant, by reducing the risk factor and insulating the claimant from a costs risk, may deny justice to a defendant, who may be driven by fear of an expensive costs award to concede or settle. It cannot be assumed that all claimants are poor and meritorious and that all defendants are rich and in the wrong.
This also disposed of the challenge under the common law right of access to justice: however some interesting comments were made, albeit by way of obiter dicta about the Unison case, the leading modern authority on the common law right of access to justice:
159. Accordingly, if there is scope for a free-standing challenge based on the common law right of access to the courts, it does not add anything to the Article 6 challenge. If the Article 6 challenge succeeds, the common law challenge will succeed, and vice versa.
160. I have already set out my conclusions, in the preceding section of this judgment, as to why the Article 6 challenge to the failure to extend QOCS to discrimination claims in the County Court is rejected. For those same reasons, which I will not repeat here, I reject the challenge on the basis of the common law right of access to a court.
161. It is worth, however, emphasising the key differences between the Unison case and the present case. First, Unison was concerned with tribunal fees, rather than the balancing of costs and costs risks between litigants. Plainly, different considerations apply where the issue concerns a financial charge imposed by government to go to court, on the one hand, and the decision as regards how costs and costs risks should be allocated as between litigants, on the other. Second, in Unison the Supreme Court was provided with detailed evidence and statistics about the “before and after” effect of the introduction of fees. No such evidence is available, at present, relation to the unavailability of QOCS in discrimination cases. As I have mentioned, at an earlier stage in the fees litigation, the Divisional Court had dismissed a claim by Unison for judicial review on the basis that the evidence was insufficiently robust to sustain the ground of challenge. The Supreme Court did not suggest that the Divisional Court had been wrong to do so (see judgment, paragraph 60).
Currently slumbering in the long grass, is a proposed pilot scheme of QOCS in discrimination claims, which might be formulated and put forward in a limited fashion in a couple of years time. Cynics might point to Covid-19, the Brexit problem (almost forgotten about at the moment) and the general lack of resources to take forward all interesting projects of that nature, amounting to further reasons for delay into 2022 and beyond.
For myself, I note from my own experience that whilst I undertook many disability discrimination claims in the county court in the years up to 2013, after that point they fell off a cliff.
Yet the problems that disabled people face have not gone away: instead disabled people deprived of a means of defraying their potential costs liabilities, face a locked and bolted door into court, precluding them from using litigation to get redress.