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What is the Price of Justice?

Posted on Tuesday, 14th June 2011 @ 05:14 AM by Text Size A | A | A

How would present access to Justice affect the cases which come to court, cases like Donoghue v Stevenson? How does this affect the Law itself?

For many years I taught the case of Donoghue v Stevenson, the basis of the Law of Negligence. When I show students the case on the British & Irish Legal Information Institute website, I point out that Mrs Donoghue was described as a “pauper”, in other words she could not afford her own legal representation; that was provided by the philanthropy of her solicitor.
Mrs Donoghue was a factory worker who suffered food poisoning in a café, the greatest part of her claim was that she lost two weeks wages; further, for technical reasons, there was a difficulty in bringing her claim under the then present Law. The case reached the House of Lords (now the Supreme Court) in 1932, where Lord Atkin gave his famous decision, shaping Negligence not only for England and Scotland but right across the World.
At the height of the Great Depression, the World could see that, in Britain, the Law was open to all and anyone could get justice, even at the highest level – at the same time, the Law was improved for the benefit of anyone who might have a claim because of someone else’s carelessness. The principle of Equality before the Law, and open access to it, had been spectacularly upheld for the entire World to see.
At this point, I ask students, if the same case arose today would the same result occur?
After World War II, the government set up the “Welfare State”, in a Britain all but bankrupted by defending the World against Hitler’s Germany, where food rationing was still in force, free health care and free secondary education were made available to all – to create “a land fit for heroes”. Shoulder to shoulder with these was the provision of Legal Aid, so that anyone could seek justice, whether they could afford it or not.
It must have seemed, and essentially it was, that the rights of people like Mrs Donoghue had been secured, Britain really was a land of freedom and justice.
Not least because Welfare State changes made it easier to sue government, successive governments have found Legal Aid “expensive” – how inexpensive is injustice?
Over the decades governments have become meaner and meaner, blaming lawyers for the inadequate funding of access to justice. But it is really in most modern times that British governments have become so cheap mean and small that they no longer provide a standard of access to justice taken for granted in the 1930s or amongst the rubble left by the Second World War. Mrs Donoghue’s claim would no longer be funded by Legal Aid.
For generations any solicitor offering “no win no fee” would have been routinely struck off. This sort of “ambulance chasing” was thought to be what got lawyers such a bad name that the name “attorney” had to be changed to “solicitor”. Now, of course, by government edict, it is the only way to fund most personal injuries claims. Is this satisfactory? Well, mostly through insurance, it is a good deal more satisfactory than “no win no fee” would have been in the past – but is this good enough?
If Mrs Donoghue were to bring her claim to Law today it would be defined as a “small claim” and on a claim of this size claimants are expected to represent themselves – no costs are awarded. It is possible for the court to certify that the issues of Law are so important that it should be dealt with by a different process in a higher court – would Mrs Donoghue have achieved such a certificate if she came to court today? Would any lawyer do the necessary work on her behalf, when the existing Scottish and English precedents seemed to be against her? And, even if all this went well, would an insurance company think achieving a change in the Law a good use of their funds?
Yes, the Western World has to recoup the cost of the wild recklessness of bankers. Does it have to do so at the expense of victims of carelessness?

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