There is no denying the litigiousness of both the UK and the US at face value. We live in a society that devotes a great focus to the possibility of ‘suing’ someone and the words ‘I’ll see you in court’ are thrown around more frequently than they should be, for example after road accident claims. Whether the UK has seen a litigious growth though, is arguable. Moreover, the extent of the problems that could be caused if there had been a growth in such activity in the UK has been subject to considerable debate.
In the US, there is a suggestion that excessive precautionary measures are taken by citizens and businesses to avoid liability arising in a potential dispute. Such a concept clearly demonstrates the ‘compensation culture’ that is in operation. Undoubtedly, if this underpins the actions of citizens and businesses alike, it can become extremely problematic for a variety of reasons. Particularly in industries that may be prone to danger or harm, a litigious society will have the consequence of encouraging defensive practices. If doctors or surgeons are considered, for example, they may avoid prescribing particular medicines or carrying out operations because they are afraid of the cost, both monetary and reputational, if there is a minor possibility that the decision they took was not entirely accurate. This type of work, and many others, will always carry risks and defensive practices will ultimately have a detrimental effect on the patient, in the example used above, or consumers.
The potential problems caused by a growth in litigiousness should not be understated. The consequences of an overly precautionary practice could be extremely harmful and if this type of culture is instilled in society, it is difficult to determine where the line will be drawn. What requirements do you have to meet to show that you have taken reasonable precautions? This is an extremely subjective question, particularly in the context of safety matters or where children are concerned. For example, a parent’s perspective of sufficient precautions may be entirely different to that of a non-parent. There is no doubt that a very litigious society is a cause for concern.
The position in the UK is somewhat more debatable than the US position. The legal system in the UK plays an equal part in society as the US system, so theoretically the risk of liability ought to have a similar effect and result in the undertaking of overly precautious measures. However, there is a fundamental difference between litigation in the UK and the US. In the UK, the burden of the legal costs are largely placed upon the losing side. In comparison, the US system requires both sides to pay their own costs. Consequently, under this system there is a greater incentive to pursue a matter to court.
In the UK, there are considerable measures in place to act as precautions, however, they are long established and do not provide evidence that would suggest growth in the litigiousness of the country. An ideal example to consider is insurance. Car insurance is a legal requirement in the UK, protecting drivers on the road from their own actions and the actions of others. There is also insurance for particular sports with a likelihood of risk or injury, which could give rise to liability. Consider the situation of a professional sportsman who gets injured by another player. The insurance is in place to cover the costs of recovery treatment and any loss of earnings that may result from the injury. While these practices do suggest that perhaps the UK is litigious, they are not particularly new phenomenons.
Despite this, there has been a significant increase in litigation, which placed a heavy burden on the courts. This was evidenced by the Woolf Reforms in 1999, which aimed to reduce the number of claims that actually reached court and encouraged settlement beforehand. It also sought to speed up the system, as the process of pursuing a matter to court had become extremely time consuming and consequently, costly. This provides a contribution to the argument of an increasingly litigious society in the UK, as individuals have been more inclined to implement the so called ‘compensation culture’ mentioned above, and attempt to receive recoupment for their losses.
There has been an ongoing suggestion so far that a litigious society is negative and problematic. While that is the case, to an extent, it should be noted that there are also arguable advantages for such practices. An increase in litigation would appear to suggest that there is a consequential increase in access to justice. It supposes that the courts are accessible and that individuals are confident users of the system, able to have any wrongdoings addressed by legally qualified individuals.
The UK’s current position has arguably been distorted somewhat, by an increase in the use of Alternative Dispute Resolution (ADR). This concept is inclusive of less formal mechanisms to settle disputes, and so it reduces the typical perception of a ‘lawsuit’ that is particularly prevalent in the US.
ADR includes arbitration, conciliation, mediation and negotiation. Overall, it focuses on providing a cheaper, faster and less formal process to litigation. It concentrates specifically on the use of a neutral third party, that is capable of assisting the disputing parties to reach a mutual agreement. While decisions reached through the ADR method are not binding, they rely on the above-mentioned idea of cooperating and making concessions in order to reach mutuality of agreement. Consequently, as both parties will ideally be satisfied with the outcome, they are likely to stick to the decision and so the non-binding aspect becomes less relevant.
There has been a considerable rise in the number of claims that use, and are settled by, ADR. Under the case management system, introduced following the Woolf Reforms, judges are required to encourage parties to use ADR and they can even implement costs if parties unreasonably refuse to try it as a resolution method.
The increase in ADR is relevant to this argument because a litigious society is traditionally considered as encompassing a high volume of litigation, largely containing matters that are extremely minor. Statistically, ADR is able to alter the volume of claims that are considered to go through the courts and arguably implies that there we have less of a litigious society than is actually the case. Perhaps though, the concept of ADR itself has altered the definition of a litigious society and broadened it to include any type of dispute resolution, rather than the traditional court process.
The reforms discussed within this article strongly suggest an increase in litigiousness in the UK and so, a shift in the position to become closer to that seen in the US. Moreover, if this is the case, it has been highlighted that while it has its disadvantages, it is not necessarily a bad thing as it indicates an increase in access to justice, which is a fundamental aspect of any legal system. It would be difficult to argue that there are no precautionary measures in place in the UK, suggesting that we do have a somewhat litigious society, however whether this has grown significantly in recent decades is difficult to measure. This is partly due to the increase in the use of ADR, which makes it difficult to assess the extent of the litigiousness in the UK, largely depending upon how the concept is interpreted. Overall though, there is considerable evidence to suggest a ‘compensation culture’ in both the UK and the US, which both Governments should be aware of and attempt to put control mechanisms in place in order to ensure it does not increase to an unmanageable level.