Law Society issues proposals for reforming civil justice

The civil justice system is unfit for purpose and has a ‘justice gap’ in which it cannot easily be accessed by those who cannot afford advice but also do not qualify for legal aid, the Law Society has said.

Richard Atkinson, chair of its 21st Century Justice Advisory Group, said in his introduction to Chancery Lane’s Fresh Ideas for 21st Century Justice paper: “An effective civil justice system is at the heart of a healthy economy and a fair society, helping people to resolve disputes and realise their rights.

“It is more than just a public service, but a public good which strengthens our democracy by providing the means through which law and justice can be upheld.”

Atkinson said a growing number of individuals and small businesses found the system “is not fit for purpose” as they could neither afford legal advice nor gain legal aid and those seeking to act without a solicitor faced “a complex landscape of non-court options which is difficult to navigate”.

He said unresolved legal disputes could lead for those affected to loss of earnings, health problems and unemployment.

From the perspective of the legal profession, many small and medium-sized solicitor firms “are facing challenges to succeed in an age of rapid digitalisation, the rise of AI and a cost-of-living crisis.”

The Law Society last March began a three-year project to look at the problems facing justice in England and Wales and its first year has focused on improving alternative dispute resolution, making legal services more affordable, civil legal aid reforms and making online justice portals work better for end-users.

Initial ideas from this include creating a single, trusted entry point to a clear set of options to resolve disputes, and reforming civil legal aid to help more people get early advice and reduce unmet legal need

Mr Atkinson said the proposals in the paper were “a practical, affordable, incremental programme of reform with broad consensus that a new government can take forward to enhance access to justice and realise the benefits this brings to our economy and our society”.

The main proposal is the development of an online diagnostic tool to help users identify the scope of their legal issue and direct them to appropriate mechanisms for redress.

This could save some £72m in direct costs over five years split between costs to claimants, defendants and the court, which the paper said would “more than offset the costs of developing the online portal”, estimated at £30m.

This ‘Solutions Explorer’ would deliver low-cost and effective triage for those with legal needs, but the paper said the non-court dispute resolution landscape “remains complex and there is significant scope for reform to ensure that existing mechanisms deliver better outcomes”.

It also proposed reform of ombudsman services, noting some 30 existed dealing with private disputes and maladministration in public services “and in some cases there is considerable overlap in their remit [which] makes it confusing for those seeking redress to know which to turn to”.

It also called for an enhanced role for the Small Business Commissioner after the Federation of Small Business found only 3% of small businesses used mediation to resolve their most recent dispute, and 8% any form of non-court dispute resolution, despite these routes being less likely to damage commercial relationships than the courts.

The paper also called for full implementation of the Jackson Review’s recommendations. It said a fixed recoverable costs regime has been introduced and would be extended from this month, but the body designed to monitor the adequacy of solicitor fees has never been constituted.

A reformed Legal Aid Agency would be needed, the report said, “to remove inefficiencies and unnecessary bureaucracy, reinvesting the savings to create a system of mixed provision with a focus on early advice”.

Poor and inconsistent decision-making from the agency had impaired the operations of providers, it concluded.

Mark Smulian