…the search for truth strains the patience of most people, who would rather believe the first things that come to hand. -Thucidydes
For many years I have had an active interest in disability issues and disability discrimination, from the inception of the Disability Discrimination Act 1995 and then latterly the Equality Act 2010.
These days that interest is largely satisfied by acting in special educational needs cases in the First Tier Tribunal: an absorbing area of work, of much complexity and which I write about here: www.specialeducationalneedsbarrister.co.uk
The LASPO 2012 reforms swept away the system of recoverable additional liabilities without really noticing or caring that irrespective of the wider merits of the reforms, one effect which was not addressed was the effective abolition of the right of disabled people who suffer discrimination in the provision of goods, services, transport or education to bring a claim in the county court or a claim for judicial review.
Without Legal Aid, without the ability to obtain and pay for ATE insurance and without a scheme of qualified one way costs shifting such claims were effectively precluded from being brought by disabled people seeking vindication of their rights given to them by Parliament, by fear of an adverse costs order should their claim be lost.
For some years I wrote regularly to various ministers belonging to the Coalition government pointing out this anomaly: that although the Equality Act 2010 gave disabled people rights to bring claims, the practicalities of funding such claims rendered such rights nugatory. An example of one such letter can be found here:
I never got a reply to any of the letters I sent. But I regarded the essential point to be very simple: that the system of QOCS devised to protect personal injury litigants could usefully be rolled out (perhaps with some modifications) to protect disabled people who had suffered discrimination.
Of course in play, were not only the technical merits of proposals to extend QOCS, which have been put forward by various bodies or interest groups, but also the political consequences.
It should be noted that the Coalition government in fact proposed the abolition of the Equality Act 2010 as part of its “Red Tape” challenge. It was the same government which introduced the fees chargeable for a time in the employment tribunals.
This latter scheme was particularly iniquitous, as it effectively prevented people who had little by way of financial resources, from accessing tribunal justice at a time in their lives when they probably needed it most, having been unfairly dismissed, and deprived of their incomes.
But the mills of god may grind slowly, but they grind exceedingly small. This is now an issue of access to justice that has surfaced in the House of Commons, with an interesting committee report published just before the summer recess which can be found here: House of Commons Enforcing the Equality Act the law and the role of the Equality and Human Rights Commission.
One of the proposals in the report was described in these terms:
210. One solution to the risk of costs in the county court proposed by a number of witnesses was to extend ‘qualified one way costs shifting’ to discrimination claims—a proposal supported by the EHRC and recommended by the House of Lords Committee on the Equality Act and Disability. Louise Whitfield, an expert discrimination lawyer, explained that in the past claimants could use conditional fee agreements and insurance schemes to protect themselves from the risk of having to pay significant costs. However, “those arrangements were scrapped” and for personal injury claims replaced with ‘qualified one-way costs shifting’ (QOCS), a scheme that was not extended to cover discrimination claims. Ms Whitfield explains that this means:
if you have a personal injury claim and you lose, you only have to pay the winning party’s costs in very limited circumstances. But if you want to bring a discrimination claim, QOCS is not available, and if you lose you could find yourself liable for tens of thousands of pounds.
211. Chris Fry, another expert discrimination lawyer, similarly argued for QOCS to be extended to discrimination claims. He felt that this would be relatively straightforward to do, requiring only a simple amendment to the Civil Procedure Rules, by Statutory Instrument. He even provided us with a draft of the necessary amendment: amend the Civil Procedure Rules, by Statutory Instrument, by the insertion,
after CPR 44.13(1)(c), of:
(d) under section 114 of the Equality Act 2010
212. We recommend that the Government amend the Civil Procedure Rules to introduce qualified one-way costs shifting for discrimination claims in the county court.
The report is of interest to a wider audience than discrimination lawyers, because it reflects a wider debate over the scope of QOCS.
QOCS represents the quid pro quo for the abolition of additional liabilities and applies to personal injury litigation, a category of asymmetric litigation where the claimants are invariably individuals and the defendants are either insured by the insurance industry or emanations of the state, such as the NHS.
But there are many other categories of asymmetric litigation: judicial review claims, actions against the police, environmental claims etc, where an expansion of QOCS protection is not currently on the agenda.
But the real question is should it be? To meet the policy concerns noted in the report which will be common to other species of litigation?
As the country indulges in more navel-gazing over the referendum result and totters towards a “no deal Brexit”, I fear that there are many other issues which will displace justice policy in the minds of whomsoever is in power this Christmas.
I do not foresee an early expansion of QOCS as being a likely gift under the tree this year.