Ryder: Imaginative proposals
The Law Society is set to examine creating consortia of solicitors to run subscription-funded legal advice helplines as part of proposals to “fix” the civil justice system.
It also claimed that an online diagnostic tool that would help consumers and small businesses identify and resolve legal problems would save around £72m in direct costs over five years, split between costs to claimants, defendants and the court.
A cost-benefit analysis commissioned from not-for-profit consultancy Social Finance said this would more than offset the costs of developing the online portal, which it estimated at £30m.
The Law Society made the proposals in the first output of its 21st Century Justice project, which it set up in March with figures from law firms, technology and business, as well as the former Senior President of Tribunals, Sir Ernest Ryder.
At the heart of the proposals in the green paper – which it is now consulting on and are not official policy – is the online tool, called Solutions Explorer, which echoes the online triage process put forward by the then Lord Justice Briggs in his 2016 review of the structure of the civil courts and the online ‘funnel’ outlined by the Master of the Rolls, Sir Geoffrey Vos, as the entry point to digital courts.
The Law Society said Solutions Explorer would identify the correct route to redress, whether a court or non-court process, increasing the proportion of people resolving their dispute out of court.
A public workshop held by the Law Society found participants “positive that Solutions Explorer would support them in answering questions about their rights in the given situation, the process and where they could get help”.
The paper went on: “It was also felt to be empowering, helping people to make informed decisions, and allowing those with the confidence to ‘self-serve’ to do so. Another perceived benefit was the idea that it would provide trusted, independent advice and they could feel confident it wasn’t ‘selling’ anything.”
To improve non-court dispute resolution, the Law Society called for the “ombuds landscape” to be rationalised – removing the overlap between different schemes – and strengthened, and for the Small Business Commissioner, created in 2016 to support small businesses to resolve disputes around late and unfair payment issues, to be beefed up to make it a better-known and more effective means of redress.
The paper said the Law Commission’s 2020 proposals to strengthen employment tribunals – such as extending time limits, increasing damages thresholds and widening the range of claims employment tribunals can decide – should be implemented too.
The Law Society said efforts to make legal advice more affordably was an important part of the proposals.
“Greater use of flexible payment options by solicitors’ firms has the potential to allow more people to access justice while also diversifying and increasing the client base that solicitors can sustainably support.”
Unbundling was one option, with the society saying that, in some circumstances, it “has the potential to significantly improve access to justice for the most vulnerable or marginalised”.
The paper said the Law Society was working with solicitors to better understand how the barriers to unbundling, particularly the liability risk, could be addressed.
“The ‘Solutions Explorer’ should incorporate a search function to help people find a solicitor, and in the future this could highlight solicitors’ firms that offer unbundled services.”
The tool would also prompt users to check whether they have legal expenses insurance (LEI).
“Given the potential for LEI to make legal advice more affordable, the Law Society will bring together stakeholders across the insurance industry, trade unions, other professional organisations and trade bodies to explore ways to promote awareness and use of legal expenses insurance…
“One element of this will be to explore how to highlight to consumers the access to legal advice helplines which come with LEI and encourage greater take-up of subscription-based services that offer this form of advice.
“Access to such helplines is already theoretically available to large swathes of the population. To reach those people on moderate incomes who are not LEI policyholders or members of organisations offering legal advice, the society will examine the possibility of facilitating the creation of new solicitors’ consortia to run a subscription-funded legal advice helpline.
“This could be built as a national service, such as those provided through existing LEI helplines, or with members of the consortia having responsibility for dealing with inquiries in their local area.”
On costs, the Law Society said the costs council recommended by Sir Rupert Jackson to monitor the level of fixed fees should be put in place.
The recommendations also sought to stretch the legal aid budget by embedding ‘blended advice’ – delivered online, via telephone or in person – into the system and also co-locating legal advice in settings people may attend to address issues related to social welfare problems, such as health centres, job centres, Family Hubs and foodbanks.
To ensure there are enough solicitors to work in this area of law, the Law Society said the Ministry of Justice should create a new programme to encourage law graduates to spend the first few years of their career in social welfare law or look at more radical solutions – in Jersey, for example, the oath solicitors take to practise also commits them to providing some of their time for legal aid work for 15 years.
Nick Emmerson, who becomes Law Society president shortly, said the civil justice system was “not fit for future purpose” and it was “vital” for Chancery Lane to lead the debate about improving it.
Sir Ernest said: “The Law Society’s work on this green paper has been inclusive and challenging.
“The result is an impressive, imaginative and forward-looking set of proposals that could enhance access to civil justice by the use of different and developing technologies and dispute resolution methods.
“I strongly recommend that those responsible for policy and funding give the proposals their serious consideration.”
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