Post Office Scandal Shows We Must Make Access to Justice Easier for Claimants
The U.S. Chamber of Commerce's goal is to constrain access to funding and deny people like Alan Bates the ability to bring their claims.
April 14, 2024 at 04:09 PM
4 minute read
Litigation FundingIt's unanimous, the Post Office scandal is one of the worst miscarriages of justice in British legal history. There have been tough lessons for ministers, civil servants, our justice system and, one hopes, for large corporations like the Post Office itself.
Access to justice is not always a given in the U.K., particularly for citizens and small businesses like the sub-postmasters who lack the war chests of corporate defendants. The odds are stacked against them.
So more must be done to level the playing field in the U.K. courts and improve access to justice. This includes protecting access to the vital financing tool, known as litigation funding, which enabled Alan Bates and his colleagues to take on the Post Office and win.
But that's not what the U.S. Chamber of Commerce, representing the interests of some of the world's largest multinational companies, sees as the central lesson from this unmitigated disaster.
Writing for Law.com International, the Chamber's U.K. campaign arm 'Fair Civil Justice' (FCJ) instead believes one of the key lessons learned is that curtailing litigation funding—the very industry that allowed Alan Bates to seek justice and expose this scandal—should be the Government's top priority when it comes to the sector.
Before the ink is even dry on a bill introduced by the Ministry of Justice to provide certainty for the legal finance industry and the claimants who rely on it, FCJ is trying to impose restrictions on the sector that would make access to justice more difficult for people like Alan Bates in the future.
It's hardly surprising. The U.S. Chamber of Commerce, or 'Fair Civil Justice' as they call themselves here, wants to preserve the historic resource advantage that its largest members have had in the courts. Whether its organisations accused of corporate wrongdoing or harming small businesses through price-fixing, the U.S. Chamber of Commerce wants to choke off any remote chance of justice.
Alan Bates himself said the "vital" litigation funding sector was critical to his and his colleagues' case. The Justice Secretary has also said that, for some, litigation funding is "the only route to redress" and has taken action to preserve this access to justice for future claimants by introducing a bill to protect access to funding.
The funding sector has developed responsibly in recent years, under the watchful eye of the Association of Litigation Funders of England and Wales (ALF), which was set up on the recommendation of a previous judge-led review of the sector.
We now welcome the Government's interest in taking a fresh look at the sector in an upcoming review. We believe there are a number of reforms that would ensure the UK continues to attract investment, keeps its status as a global legal centre, and provides access justice for those harmed by defendants with deep pockets.
One important reform would be to put defendants on a par with claimants by requiring that they cover all the claimants' costs should they lose their case. This is something that is already required of claimants. Not only would this mean a fairer share of compensation being kept by claimants (with less compensation being eaten up by fees) but it would also discourage the delay and the typical scorched earth tactics used by defendants as demonstrated by the Post Office, which spent £100 million of taxpayer funds on their ultimately unsuccessful defence of the claims against them.
Currently funders take on just 5% of the cases we're approached about, as the deck is stacked in the defendants' favour and it doesn't make financial sense for the claimant or the funder to proceed. This statistic could be improved by expanding the remit of the Competition Appeal Tribunal so that non-competition cases can be pursued, or by expanding the representative action regime.
We could also follow the lead of Switzerland and require that lawyers advise clients on their options for funding.
No-one should be fooled by the U.S. Chamber of Commerce's attempts to secure its policy goals by claiming it will deliver benefits for U.K. consumers or small businesses. Its goal is to constrain access to funding and deny people like Alan Bates the ability to bring their claims.
We believe the key takeaway from this awful scandal is that more, not less legal finance is necessary to expose future corporate wrongdoing. We remain optimistic that the Government will continue to recognise the critical role litigation funding plays in private enforcement, in this jurisdiction.
Susan Dunn is chair of the Association of Litigation Funders of England and Wales.
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