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.