Litigation vs Justice: Has access to the law become too expensive?

November 26, 2019

3 min read

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What's going on here?

The costs of litigation in the recent case of Bates v Post Office have climbed above £35 million, a number which many have termed “excessive”.

What does this mean?

Proceedings have been brought against the Post Office by former employees. They claim to have been “wrongly blamed” for supposed discrepancies in branch accounts, following the introduction of a new computer system. 

The claimants are being represented by Freeths, with support from the litigation funder, Therium Capital. The Post Office has hired litigation heavyweights Herbert Smith Freehills and Womble Bond Dickinson to defend its case. Justice Fraser said this move is “unusual”, and argued that hiring two firms brings up “concern[s] about duplication”. This factor, along with the number of claimants and the time taken during proceedings, have likely increased costs.

The Post Office has spent up to £19.5 million, compared to the £16.28 million spent by the 555 claimants. Although the Post Office’s costs are likely to be greater, there is doubt regarding whether this figure is justifiable.

What's the big picture effect?

High cost litigation raises a number of issues and courts are keen to avoid to avoid it for several reasons. One consequence of costly litigation is the rise of “litigants in person”. These are individuals who represent themselves in court, without the aid of qualified legal professionals. Those relying on self-representation may not possess sufficient legal knowledge to promote their case. This inability to benefit from the law threatens to erode access to justice. If cases such as Bates v Post Office continue, engaging in litigation will only be available to a minority. This strengthens the argument that the law is increasingly out of the reach of those who cannot afford it. 

Further, expensive litigation has increasingly resulted in the rise of other methods of dispute resolution. Courts will continue to push parties towards methods such as alternative dispute resolution (ADR). These bring their own benefits and drawbacks. For instance, alternative methods of resolving conflicts, like negotiation and mediation, are often much quicker and cheaper. However, dependent on the method used, decisions reached using these methods may not be legally binding or, if they are, can be much harder to appeal.

In addition to this, given the increasing cuts in legal aid, new ways of meeting the costs of litigation have begun to emerge. One route is relying on litigation funders. A funder will pay part, or all, of the costs of a dispute in return for a share of the proceeds if successful. This method provides help for the large number of individuals who would not otherwise be able to receive legal advice. However, this raises the question of whether litigation funding can help to promote access to justice, or whether the focus of funders remains profit.  

If litigation funding increases, this will make it easier for smaller law firms, with a focus on charity, to continue offering these services. This can help ensure access to justice is maintained.  On the other hand, if the costs of litigation continue to rise, resources in this sector will be squeezed.

Law firms and individuals alike will have to come up with new ways to fund claims, litigation funding being one of them. These new forms of funding can be successful, especially where there are a large number of claimants such as in Bates v Post Office, and will no doubt play a crucial role in promoting access to justice.

Report written by Laila Khan

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