No Justice Without Lawyers—The Myth of an Inquisitorial Solution

Article written by Olga Kyriakoudi

‘If obtaining justice calls for legal expertise, then those who cannot afford to pay for it are in effect denied access to justice’ Adrian Zuckerman, No Justice Without Lawyers—The Myth of an Inquisitorial Solution.

Legal expertise is vital for justice, yet its importance diminishes when financial barriers hinder access to qualified representation. Zuckerman’s assertion rightly emphasises the inherent flaw in a system that links the achievement of justice to the ability to afford legal expertise.  Various avenues have been explored to mitigate the financial burdens associated with obtaining justice and to reinforce the fundamental principle that justice should not be a privilege reserved for the affluent.  

Conditional Fee Agreement

Conditional Fee Agreement (CFAs) were introduced in 1990 as an innovative response to fiscal challenges within the UK’s civil legal aid system.  Aiming at alleviating the financial burden on legal aid and exploring alternative funding models, CFAs sought to shift financial responsibilities to the private sector while maintaining access to justice. CFAs, involve solicitors charging clients exclusively upon case success, with costs recoverable from the losing party. CFAs aim to balance client compensation and prevent excessive legal costs. By enabling individuals with limited financial means to pursue legal action without upfront fees, they enhance access to justice. The risk-sharing aspect prompts a careful case assessment, aligning lawyer and client interests. The success fee incentive benefits both parties, reducing financial burdens, especially in personal injury cases. CFAs also offer insurance options against opponents’ costs, providing a layer of financial protection. Lastly, CFAs adapt well to different case sizes and complexities, allowing for a tailored approach to legal proceedings. Conversely, the capped success fees, reaching up to 100%, raise concerns about substantial pay-outs to lawyers, prompting questions of fairness and proportionality. Critics  argue that CFAs may deviate from traditional legal aid principles, excluding individuals from justice who would have qualified under the older system.

Lawyers also face financial risks, especially in complex or lengthy cases, where a loss might result in minimal or no payment for their services. This raises concerns about conflicts of interest, as lawyers may prioritise financial gain over clients’ best interests, particularly in settlement discussions. Thus, risk aversion in legal funding may prioritise cases with higher success prospects, potentially favouring clients with greater gains and upfront cost coverage. Historical champerty concerns persist, raising ethical questions about lawyers sharing risks and rewards with clients, despite legal evolution. Additionally, CFAs have limited applicability in certain family law cases, leaving some without affordable legal representation. Overall, concerns arise in case law, with Thai Trading Co, validating a CFA’s legitimacy but Bevan Ashford highlighting discrepancies, especially in ADR, namely arbitration. Jurisdictions like Singapore prohibit CFAs due to issues like appeal absence. Domestically, Lord Justice Jackson’s 2009 examination led to post-2013 reforms, shifting success fees from losers to winners. However, Lord Justice Jackson identified CFAs as a major contributor to disproportionate costs. Furthermore, recent cases  caution solicitors about settlements forfeiting conditional fees, emphasising legal representatives’ vulnerability. The balance, protecting public rights at lawyers’ challenge, may hinder CFAs’ effectiveness, adding barriers to justice.

Reforms should integrate CFAs with the Legal Aid Agency, creating a hybrid fund. Winning parties’ damages would be processed through the court, with a percentage allocated to a shared legal aid fund, ensuring solicitors’ fees are covered before the winning party can access their damages. This approach supports individuals without access to CFAs or other funding, providing a reliable mechanism for lawyers’ compensation. Conclusively, CFAs offer an alternative to legal aid with both advantages and concerns. 

Alternative Dispute Resolution 

Alternative Dispute Resolution (ADR) stands as an expeditious and cost-efficient alternative to conventional litigation, addressing the protracted nature, considerable expense, and perceived inefficacy of the latter. ADR, utilising a neutral third party, emphasises early settlement, overcoming time-related impediments associated with court proceedings. Government support and legal provisions empowering courts to enforce financial incentives for unwarranted refusal,  enhance the effectiveness of ADR. Thus, it provides immediate benefits by preserving judicial resources and alleviating financial and emotional burdens on litigants, as reflected in various publications. This aligns with the crucial need for timely dispute resolution in the civil justice system. Notably, the confidentiality inherent in many ADR processes further ensures privacy for clients,  another advantage over public court proceedings. While ADR offers advantages, its voluntary nature faces resistance from those favouring the reliability of litigation, a lengthy but predictable process. Thus, the absence of inherent legal binding, except in arbitration, limits ADR’s widespread acceptance. Despite government support for ADR, critics like Lady Hale express concerns,   supporting the raised sentiment about potential risks such as the loss of legal protections and the trivialisation of disputes. This underscores the need for an approach ensuring access to justice with guaranteed results, sparing the expense of litigation, which ADR fails to establish. Cases with precedent potential often bypass ADR, especially when using methods without legal professionals, highlighting another limitation of ADR. Paradoxically, its ineffectiveness compels parties to turn to the courts, leading to delays and exposing a deeper concern: the cost of accessing justice. This financial barrier restricts access to an impartial court hearing, thereby breaching human rights provisions. This concern is echoed in publications, emphasising ADR’s ongoing struggle in the directionality to bridge the gap in justice access linked to financial feasibility. 

Litigants In Person

Litigant In Person (LiPs), individuals representing themselves in court, play a crucial role in addressing access to justice. However, the significant increase in LiPs highlights the impact of legal aid cuts on access to legal representation. LiPs face challenges, including limited legal knowledge and difficulties with complex legal procedures, impacting their ability to protect their interests. The absence of legal comprehension can jeopardise their representation in court, leading to inefficiencies, possible errors in the judicial system, and establishing an imbalance of power between the involved parties. The need for more accessible legal information and a uniform approach to supporting LiPs is evident. Conversely, LiPs have support through entities like Support Through Court and McKenzie Friends, which provide practical and emotional assistance. Furthermore, pro bono services from legal professionals, such as the Citizens Advice Bureau, provide free legal guidance. Nevertheless, reforms should improve support mechanisms and reassess legal aid rather than overhauling court processes. Thus, current support for LiPs is insufficient. 

Ultimately, CFAs offer balance, potentially improving through a hybrid legal aid approach. Despite ADR’s efficiency, it encounters resistance, and LiPs respond to, rather than expand, the legal system’s inefficiencies. Analysing these avenues reveals that CFAs may seem preferable for funding compared to ADR or LiPs. However, CFA’s drawbacks emerge when applied in domestic cases leading to claims at the European Court of Human Rights.  Furthermore, the inherent design of the adversarial system entrenched in the UK serves as a significant barrier to accessing justice without proper representation. Reforms should prioritise bridging the access-to-justice gap, avoiding undue burdens on judges. This involves establishing a dedicated tax-focused fund, offering government support through grants or subsidies for financially constrained individuals, and exploring tax incentives to encourage pro bono services by lawyers.

Despite the efforts of the Legal Aid Agency to offer financial assistance for claims, the outlined reforms are essential for its effectiveness. Therefore, it is evident from this analysis that claimants with limited financial means experience a deficit in sufficient access to justice. Consequently, the current system aligns with the statement that ‘obtaining justice calls for legal expertise, and those who cannot afford to pay for it are, in effect, denied access to justice.’ This highlights a fundamental challenge within the legal framework, where accessing justice is contingent on financial resources, thereby constituting a violation of the rule of law.