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Legal aid cuts could lead to law reform ‘black hole’

Mr Justice Foskett warns of pressure on judges from litigants in person

20 November 2012

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Legal aid cuts and an increase in the number of litigants in person could lead to the creation of a “black hole” for civil law reform, Mr Justice Foskett has suggested.

Foskett J said that recent Law Commission successes in reforming civil laws were “rather few and far between”, while reform through case law could only operate if cases “which raised the issues that need contemporary review” came before the courts in sufficient numbers.

Delivering the autumn law alumni lecture at King’s College, London, Foskett J said the Woolf reforms had contributed to a decrease in the amount of contested litigation over the last 10-12 years and the reduction in eligibility for legal aid had also made a significant impact.

“That reduced availability will take another step in April next year and, in consequence of the reforms to the way in which litigation may be funded henceforth, the market-place will play an even greater role in determining which civil cases are fought and which are not.

“I say nothing about the policy that lies behind this: that is a ‘no-go’ area for a judge.

“But it does not require much imagination to appreciate that civil cases that might be described as on the borderline of arguability will struggle to qualify for funding under the new arrangements.”

Foskett J said it was “entirely right” that the courts should not be overwhelmed with cases of doubtful merit.

“However, there are cases, which are easier to identify than to define, where success could depend on a subtle change in well-established case law.

“Cases of this kind could foster the incremental development of the civil law. But what prospects of funding do such cases have in the litigation market-place?”

Foskett J asked how easy it would be for judges to consider a potential move forward in the law where the argument for or against it was put forward by a self-represented litigant.

He said that the cautious manner the task was undertaken now, usually only after the “benefit of good and informed argument on both sides”, suggested that “even greater caution” would be exercised in the future.

Foskett J said there would “surely come a time when, in a particular area of civil law, everyone recognises that the law is out of date but no-one, least of all the judges, can do anything about it”.

He said it was “plainly a step too far” to suggest that reform of the civil law was “already confined to a black hole”.

However, Mr Justice Foskett said that unless the issue was confronted, complacency could take over and, “before we know it, the proverbial black hole has been created and there is escape from it, or too rapid an escape is fashioned for an individual area of the law and the legislation enacted is less well-considered than it should be.”

He concluded: “General respect for the law binds society into a civilised unit. Judges may for ever have to accept the criticisms that others make of their decisions, but they cannot be criticised for applying laws that are out of touch with modern needs if those laws have not been permitted to catch up.”

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