By Tony Buss, CEO of Legal Futures Associate ARAG UK
Tony Buss is CEO of ARAG, the UK’s leading insurer of legal costs. He has been a key figure in the fight for access to justice for nearly 40 years and reflects here on the continuing crisis in the justice system, its effect on the country and how he hopes things might improve.
The one thread that has continued, unbroken, throughout my career in the business of insuring legal costs is the battle for access to justice. It may not be the reason most of us came into the legal expenses insurance (LEI) sector, but it’s the reason many of us have stayed in it for so long.
Diminishing justice
When I joined this relatively new UK market niche in the 1980s, I never imagined that we would be looking back now at such a sustained period of decline in access to justice as we have seen over the past 15 years.
Certainly, there were cuts to legal aid in the 80s and 90s, but the damage that has been done to both the fabric and reputation of our justice system over the past decade and a half is far heavier and will take many years to repair.
That period roughly coincides with the publication of the Rule of Law Index, painstakingly researched and edited by the World Justice Project since 2008, which assesses countries against 44 distinct criteria, from judicial corruption to regulatory enforcement.
Since first appearing in the rankings in 2011 the UK’s position has declined, especially in the area of civil justice. Across all aspects of the research, the criterion against which we consistently score lowest, by some margin, is the ‘accessibility and affordability of civil justice’.
It won’t come as a surprise that the rank and scores that the UK achieves under criminal justice have also declined sharply over the past decade.
Disorganised crime
Repairing our criminal justice system must be a priority for any government. Backlogs and delays in our civil courts and tribunals have significant societal consequences but the chaos in criminal justice has ruined, risked and even cost lives.
No government could have foreseen the terrible event in Southport in July, let alone the widespread rioting and hooliganism that followed. But just days after her appointment as Lord Chancellor, Shabana Mahmood had already announced emergency measures to avert a “…collapse of the criminal justice system” and “a total breakdown of law and order.”
While the police, courts and prisons delivered a swift, firm response to the riots, the additional strain will only extend the long recovery of our criminal processes, with inevitable ramifications for the wider justice system.
Civil wrongs
The failures in our civil courts and tribunals may be less dangerous, but they are just as deep and also have serious consequences.
Billions of pounds are tied up in money claims that now take years to resolve. We see the problems this causes individual businesses, but the cumulative economic drag it creates must be huge.
Equally, the employment tribunal system may not seem the highest priority but, with thousands of businesses of all sizes waiting years to resolve a dispute, the additional time and expense involved is an avoidable economic deadweight.
Blame the claim
These issues were never going to be easily resolved, but the failure to make any meaningful headway stems from a repeated choice to blame victims rather than address root causes.
When employment tribunals faced too many claims, fees were introduced to discourage claimants. When insurers insisted that whiplash was inflating motor premiums, the existence of such injuries was denied and it was made harder to pursue justice.
Rather than address the undeniable decline in maternity care, so harrowingly catalogued in this year’s Birth Trauma Report, the debate has focussed on claimant costs and the firms that offer victims and families their only hope of redress.
Filling the justice gap
While access to justice has diminished, necessity is often the mother of invention and legal expenses insurers excel at developing policies to plug the growing justice gap.
After-the-event insurance, now so familiar and indispensable to solicitors, is relatively new. We wrote the first policies in the mid-90s, but cover quickly evolved to meet the needs and opportunities created by the 1999 Access to Justice Act and the Legal Aid, Sentencing and Punishment of Offenders Act implemented in 2013.
We also fought a succession of legal challenges brought by defendant insurers and government agencies that typically sought to undermine access to justice rather than address the failures making it necessary.
The harder and more expensive it gets to assert one’s legal rights, the more vital LEI becomes and, like many solicitors, insurers serve a valuable function in filtering out claims with no merit or prospect of success. We direct claimants towards alternative routes for redress and help to resolve disputes without ever troubling a court or tribunal.
Reasons to be hopeful
LEI can only help so much, but I am optimistic that our new Prime Minister deeply understands the workings and failures of our justice system, at least.
The same is true of Shabana Mahmood who will surely get longer to initiate reform than her 10 predecessors in as many years. She has already lasted longer than the seven weeks Brandon Lewis was Justice Secretary in 2022.
It is that short-termism that has probably harmed the justice system most. The search for quick fixes, scapegoats and headline-grabbing initiatives over fundamental reform and investment was always destined to fail. We can only hope that a calmer, long-term approach will prevail so that the decline can be reversed.
For example, initiatives such as fixing recoverable costs in lower value clinical negligence cases aren’t intrinsically unwelcome, as long as they are calculated fairly and there is regular and open-minded review of both their effectiveness and the levels at which costs are fixed.
While the problems facing the MoJ are complex and stretch far beyond its remit, into Health, Social Care and beyond, the potential social and economic dividends are enormous.
It would be nice to live in a country where access to justice was unfettered and affordable to all but, for now, I’m just hopeful that we can start moving in the right direction.
