Legal costs risk widespread miscarriages of justice

There’s a surge in people spreading the eye-watering cost of their lawyers. But not everyone thinks it’s just

Barristers and solicitors have been demonstrating against cuts to legal aid for years (Getty)

Nine out of 10 lawyers say they are being forced to halt work on cases at least once every fortnight as their clients lack the funds to cover their legal costs. And it is estimated that more than 30 per cent of people who need legal support are not even approaching a lawyer for fear of what it might cost them.

These damning numbers come from Legal Cost Finance, a payment-plan provider that offers credit for customers who need to pay for legal representation. The company has seen applications for finance soar over the last 12 months and is now calling on more providers to offer needy clients the ability to stagger the cost of their representation.

Certainly the issue of court and legal costs is becoming ever more pressing. A report published last year by the charity Transform Justice warned that there has been a “significant” rise in the number of defendants forced to go without representation because they do not qualify for legal aid.

That report warned that the inability of some defendants to afford representation is affecting the outcome of trials. It concluded: “Criminal courts have muddled along for years, dealing with unrepresented defendants as best they can. Increasing numbers, and recent reforms, mean that muddle is turning into what some of our interviewees perceive to be daily miscarriages of justice.”

And it’s not just miscarriages of justice in the criminal courts; some civil cases fold because the costs grow too large for the people involved to take the risk even when they firmly believe they are in the right.

Tim Speed, associate partner and litigation specialist at Shakespeare Martineau, explains: “If an action takes an unexpected turn or becomes long drawn out, costs can escalate quickly and this could create problems. Where the parties do not have the same level of resources, a party could be forced to settle in order to avoid the risk of continuing with the claim, which if they lost could be catastrophic.”

Essential and increasingly normal

The idea of people being forced to go into debt in order to fund their legal advice is almost as uncomfortable as the idea that increasing numbers are going without any advice at all.

Yet Dr Yuri Rapoport, founder of Legal Cost Finance, maintains that this kind of credit is an essential way to ensure they can access justice – and a normal way to pay for a service.

He says: “The legal industry should be no different from any other sector in terms of how people or businesses can cover their bills. In fact, what is more important than being able to afford access to justice? You wouldn’t be asked to pay for a house up front and car sales would dip significantly if you had to pay for the vehicle in full before you were handed the keys. So why should legal costs be any different?

“Our intention is to help, not exploit, and many individuals and businesses have already reaped the benefits by being able to cover their legal costs. Ultimately, this means they have access to justice in getting the right advice and appropriate representation.”

His belief that legal fees on credit is an asset to justice and not an injustice in itself is echoed by Emma Butcher, senior solicitor at Clarkslegal. She argues there should be more products available to people facing court costs.

“There are already a number of litigation funders in the market, but they tend to be more suited to higher value claims and funders have strict eligibility criteria,” she explains.

“There is a real lack of funding options for people with small and medium-sized claims, which has led to the courts seeing more and more people representing themselves without the benefit of legal advice, or litigants not pursuing strong claims because they can’t afford to pay legal fees.

“More companies should be offering loans designed for medium and lower value claims, so that people have access to funding at all ends of the spectrum.”

Best options

It is not ideal that people should be forced to take out credit to access justice but at least it means that they can be represented. Otherwise many people and small or medium-sized businesses would simply find they could not afford their day in court – or at least not afford to be adequately represented.

Tom Blackburn, costs and funding expert at Keystone Law, says the fault lies with the system that demands most people cough up for their own representation.

“Paying for justice in any society creates a two-tier justice system,” he argues. “It means those who can afford to pay, get what they pay for. Those that cannot are left in an invidious position: either don’t pursue justice, or borrow from someone else and give some of your hard earned justice back if [or] when you win.

“The problem lies with policy makers, not those who are providing finance for litigation. Those providing finance are only plugging a hole that has been created by the mismanagement of our justice system. It’s much easier to campaign for votes when touting free tuition fees or no increases in tax. It’s far more difficult to explain why our justice system – which has been the envy of the world for so long – is now broken in certain areas.”