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"Legal costs must not be cut at the expense of access to justice"
Karl Tonks, a partner with Fentons Solicitors LLP and president of the Association of Personal Injury Lawyers (APIL), has told his members he fears that “costs will be cut at the expense of compromising access to justice, if not denying it altogether for some claimants.”
Speaking at the annual President’s Lunch in London, Karl said the Government's stated purpose in its civil justice reform agenda - to cut costs, without damaging access to justice -was a worthy aim. But he said in the aggressive rush to reform, the rights of injured people to independent legal advice and fair compensation were being overlooked.
“Vulnerable people are going to suffer - of that I have no doubt,” he said. “In any process of change worth doing, it's worth taking the time to consider all the options and to do it well for the long term. For example the recently announced new high-speed rail link to Manchester and Leeds will take as long as 20 years to put into place – presumably because the Government wants to get it right. I am not suggesting we postpone civil justice change for that long, but surely a system which serves vulnerable, injured people deserves at least the same kind of careful, balanced consideration?”
Karl said he was pleased the Government had now recognised that it needed to pause and reconsider the timetable for further reforms which would extend the current scheme dealing with compensation for road traffic injuries to other types of cases. “But it's a huge personal regret to me that it's taken the spectre of APIL’s judicial review proceedings to make the Government came to that view,” he said. “Worse still, now we have been forced actually to issue proceedings about the way the Government reached its conclusions on the need to cut costs, it has been reported that an arbitrary increase of the small claims court limit to £15,000 for all types of case, is being considered. This would force seriously injured people into a system which is fit only for settling disputes about faulty goods and services, not for dealing with complex matters of law.
“I find it hard to accept that a responsible Government would react in such an irrational and indiscriminate way to a legitimate legal challenge. I can only hope that the reports are unfounded, as such a move would amount to a side-swipe at injured people as punishment for an attempt to exercise our democratic right to scrutinise our Government, which is a fundamental part of the rule of law.”
Karl also used his address to take the Government to task over another of its “rushed and dangerous” reforms, namely those proposed in the Enterprise and Regulatory Reform Bill. “A late amendment was brought forward without any consultation, which seeks to change the law, the Health and Safety at Work Act 1974 relating to compensation for accidents at work, by removing civil liability for breach of regulations,” he said. “That effectively takes the legal position back to how it was at the end of the 19th century.”
Karl said despite intentions, the proposed change would affect every future claim for compensation for an accident at work. “The Government’s own impact assessment identifies that it had two options - to do a proper job and look at each and every provision relating to strict liability; or to take the simple (and I would say lazy and reckless) approach, which will affect tens of thousands of cases, tilting the playing field in favour of employers, who hold all the cards, and against vulnerable workers, who hold none.
“If the Government’s proposal goes through, an injured worker will have to gather the evidence they need to prove that their employer has been negligent. How can they be expected to do that when the employer holds all the knowledge about the firm and the worker holds none? What if the injured person was rendered unconscious in the accident and can’t recollect what has happened? What if they were killed in the accident and their family have to gather the evidence? How is that fair?”
He urged everyone involved in the process of formulating the reforms to make the time to gather and look at the evidence.
“These reforms will be with us for many years so we must take the time to get them right,” he said. “The Government has recently shown that it can listen and respond to concerns in relation to its reform of the GCSE exam, and it needs to show the same willingness to listen in relation to civil justice. It would be irresponsible and wrong to reform and change in haste and then force injured victims to repent at leisure.
“I believe we have a responsibility to work together to ensure that reform, if it is needed, is introduced with thought and care. This is all too important to get wrong.”
Read the full speech at: APIL
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