I have had occasion on this blog to repeat the old adage that justice is open to all – like the Ritz Hotel. I was reminded of it by two headlines I saw this morning.
The first is from today’s Irish Times:
The court system is “fearfully expensive”, “alien” and “truly accessible to increasingly few”, a High Court Judge has said. The courts were a forum that should be engaged only as “a last resort”, Mr Justice Max Barrett added. … “Almost a hundred years after the opening salvos that led to the creation of our present Republic, we have now an expensive court system that remains alien to many and truly accessible to increasingly few.”
Update: Barrett J made these remarks in Traynor v Guinness UDV Ireland  IEHC 732 (24 November 2015) , permitting the case to proceed, but recommending that the parties resolve the matter “collaboratively if possible, by mediation if not, by expert decision if necessary and, only as a very last resort, in this fearfully expensive forum” (id).
We can’t afford lawyers, says public
Lawyers and legal advice are well beyond the budgets of ordinary people, a survey published this week has found.
Some 70 per cent of respondents to research conducted by Citizens Advice said they would not be able to afford a lawyer to advise on a problem or dispute. Only about 10 per cent were confident they could stump up the cost of legal fees.
Other conclusions from the Report are that 1 in 7 don’t have confidence in the justice system, that low levels of support and advice are putting off some people from seeking to solve their problems, that more and more people are going to court without a lawyer, that negative experiences are leading to negative opinions of the justice system, that people’s bad experiences and perceptions of justice are putting them off using it, and that, overall, only 2 in 5 (39 per cent) people believe that the justice system works well for citizens. Also published today is a Report Card on Barriers to Affordable Legal Help in the US, which makes very similar points. The American Bar Association has established a Commission on the Future of Legal Services to “propose new approaches that are not constrained by traditional models for delivering legal services and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all”.
The recent Canadian Bar Association report on its Legal Futures Initiative – entitled Futures: Transforming the Delivery of Legal Services in Canada (pdf) – made a series of recommendations around flexibility in business structures, including the adoption of alternative business structures, and new models for legal education. In Australia, recent reforms in New South Wales and Victoria are intended to create a common legal services market, underpinned by a uniform regulatory system, to promote efficient and cost-effective administration of justice. Canada and Australia are on a journey down the same road travelled recently in the UK, where the destination was the Legal Services Regulation Board established by the Legal Services Act 2007.
Also on that road is the Legal Services Regulation Bill. If it improves the problems identified by Barrett J, by reducing legal costs, then its (long delayed, but now imminent) enactment cannot come soon enough. And it will be a necessary endeavour. Confidence in the administration of justice is at the heart of the rule of law. Access to justice is a constitutional fundamental (Greenclean Waste Management v Leahy (No 2)  IEHC 314 (05 June 2014)  (Hogan J, upholding after the event legal costs insurance as serving important needs within the community by facilitating access to justice for persons and entities who might otherwise be denied it). Of course, the Bill (heavily amended, and now far more modest than the position recommended in Canada, or obtaining in the UK, New South Wales, and Victoria) on its own will be an insufficient remedy for these problems, but it is a start it might at least be a good start, and it may even be half the work. But that is all that it will be. Far more will need to be done. Much will depend on the Legal Services Regulatory Authority established under it. For that, we shall have wait and see. And, meantime, our expensive court system will remain alien to many and truly accessible to increasingly few.