It's the end of the world as we know it - feeling fine?
It’s rather a British thing to support the underdog. I’m pretty sure most of us feel a natural affinity for David and get a warm glow when he manages to land one on Goliath. It’s nice to know that when the little guy takes on an injustice done to him he can be sure of a fair hearing thanks to Lady Justice and the principles of magna carta. At least that’s what it used to be like.
Last week Lord McNally accused critics of the government’s proposals to cut the legal aid budget of scaremongering. During a debate the Legal Aid Sentencing and Punishment of Offenders Bill (LASPO) he refuted any suggestion that that the changes would ‘bring down society as we know it’. But isn’t that happens if you restrict access to justice for the little guy?
In a separate, but related attack on the little guy's rights, David Cameron used his first public appearance of 2012 to announce he intended 'killing off for good the health and safety monster'. He lamented that our economy is being ruined by a pernicious ‘compensation culture’ and insidious health and safety laws. He wants 2012 to go down in history as the year ‘we banished a lot of this pointless time-wasting from the economy and British life once and for all’.
I’m not going to start on what is really strangling the British economy, but to suggest it is the laws and regulations put in place to protect employees and the public is at best desperate and at worst a concerted attack on individuals' rights. Cameron is setting himself up as judge and jury, and declaring Goliath the victor, before there has even been a proper trial.
Not content with strangling the life out of legal aid and undermining the system set up to prevent death, injury or illness at work, the government has also declared out and out war on referral fees and the no win-no fee system of funding legal cases. It believes they are fuelling an out-of-control personal injury system, in particular, the glut of motor accident whiplash claims, undoubtedly the ‘poster boy’ of that pernicious ‘compensation culture’.
With the help of Jack Straw, justice secretary under the last Labour government, Cameron is doing a pretty good job of making any claimant look like a scrounger. I am not a fan of the ubiquitous no win-no fee ad campaigns and I would agree that some of the more aggressive tactics firms use to capture claims border on scandalous, but every business has its grubby side and no win-no fee serves a vital purpose. It enables that little guy to get justice.
In their overzealous attack on the personal injury compensation system and the professionals that make a living out of it, Cameron and Straw and the poodles at the Ministry of Justice are in danger of trashing a whole system that enables David to stand up to Goliath. Oh, and while we're at it, there is nothing wrong with lawyers trying to make money: doctors make a living out of sick people, the police make a living out of crime and firemen make a living out of stuff catching fire. Bad stuff happens and you normally have to pay people to clean it up. That's just how it is.
They should, although they probably won't, also remember that the no win-no fee system isn't just about nasty old personal injury claims. By ensuring equality of arms, it enables individuals and communities to take on the powerful and sometimes even win. The parents of Milly Dowler, and Chris Jefferies, the former landlord of Joanna Yeates, have been outspoken in their support for no win-no fee agreements, saying the planned reforms would prevent people of ‘ordinary means’ from obtaining justice or defending themselves in court. Sally Dowler said:
‘At the outset we made clear that if we had to pay the lawyers, we could not afford to bring a claim; or if we had any risk of having to pay the other sides’ costs, we couldn’t take the chance. If the proposed changes had been in place at that time we would not have made a claim. Simple as that, the News of the World would have won, because we could not afford to take them on.’
In another example, it was heartening to read of the victory against Thames Water of 1,350 residents living near a sewage treatment works in Isleworth, Middlesex . After a long and arduous battle, the High Court found the company liable for breach of duty in relation to nuisance caused by odour from the plant. One of the claimants, Steve Taylor said:
‘I hope this case shows that David can take on Goliath in our legal system and win. The case was never about money; it was about holding Thames Water to account for the problems that it has caused us over the last ten years…. The stature and financial clout of Thames Water meant we were only able to take this case forward because of the current no win-no fee system. Changing this system will deter others in similar situations to ours from bringing cases against big companies and will be a real obstacle for ordinary people to access justice’.
The changes to no win-no fee agreements may well stop some of the worst abuses of the system that upset Cameron and Straw so much. But they also threaten to make it almost impossible for people to defend their human rights against multinationals, particularly in the developing world. The cases against Trafigura (injuring 30,000 Ivorians by dumping toxic waste), BP (environmental degradation caused by construction of an oil pipeline in Colombia) and Anglo-American (exposing South African miners to asbestos dust) would never have been brought without no win-no fee.
It is not just the cuts to legal aid that will bring down society, it’s the whole raft of reforms the government is bulldozing through parliament, with Cameron gleeful at the wheel and Straw, whooping encouragement, riding pillion. Without no win-no fee, and no way for David to hold Goliath to account, it really could be the end of the world as we know it.