David Oldham on the erosion of the civil justice system
David Oldham has a mission, he says in the notes accompanying the news of his appointment as president of the association of district judges. “It is to persuade the government to return to funding our civil courts to a realistic level.â€
David Oldham has a mission, he says in the notes accompanying the news of his appointment as president of the association of district judges. 'It is to persuade the government to return to funding our civil courts to a realistic level.'
Judges have their pet campaigns. This time last year, for instance, Edwina Millward told Solicitors Journal about her concerns about the opening of family courts, an issue she has raised consistently throughout her presidency. David Oldham's concerns however, do not make headline news in the same way, but chronic underfunding of the justice system causes equally deep, long-term wounds.
'Civil justice is always at the bottom of the pile,' he says, 'it's not as sexy as crime, abuse of miners' compensation or family issues but it affects an increasingly large number of people'.
For the majority of citizens, the most likely contact with the justice system is before district judges, but with court costs going up and eligibility for legal aid decreasing, access to justice is becoming more of an aspiration than a reality.
'The root of the problem is with the principle of 'full cost fee recovery', the requirement that the civil justice system should be self-funding apart from exemptions and remissions '“ and that's inherently unfair,' says David Oldham. 'Litigants should not have to pay for the whole service. The Woolf reforms intended to facilitate access to justice but ten years on this has been hampered by the full cost recovery principle, and it seems the only way down this road is further increases in court fees.'
Small claims, the bulk of civil disputes in the county courts if one excludes family matters, range from faulty double-glazing to disputes between neighbours, and they easily rack up fees in the hundreds of pounds right from the early stages of proceedings, potentially discouraging individuals with a reasonable claim from bringing a case.
Oldham continues: 'More of the justice budget should go towards the funding of the civil courts. The problem at the moment is that it is government policy that full recovery is non-negotiable; it is a given in all consultations on civil justice.'
But is he really in a position to do anything about this? In the face of government determination to abide by the full recovery principle, the only realistic move is to continue to campaign to raise awareness of the issue and bring it into the public arena so that, in due course, it becomes a policy issue which gets properly debated.
Fortunately, Oldham is not alone. He can count on the support not just of his peers but of other well-known figures, such as Professor Hazel Genn QC, who has been vocal about the adverse consequences for justice as a whole. Organisations such as the Association of Personal Injury Lawyers and Resolution, the former Solicitors Family Law Association, have expressed similar concerns.
'There is a public element to being a judge; judges provide a service, like doctors,' he says. 'Those who say the NHS is not a suitable comparison fail to realise that civil justice is not just about individual disputes; there is a public interest in getting disputes resolved effectively through the courts.'
And mediation, according to Oldham, does not necessarily provide the obvious alternative to court-based dispute resolution its proponents claim it does. 'Courts should be the last resort; everybody agrees with this, but there is a danger in forcing people to go down the mediation route as the only option. It has worked in some cases, particularly small claims, but it is difficult to say whether it has actually saved court time.'
He continues: 'Judges make decisions that are sometimes difficult or unpopular, but that's what we're here for; this is part of the justice system.'
In an unexpected way, the current recession could bring proof of the need to review the assumption behind the full recovery principle.
The predicted flood in repossession cases has not yet materialised, partly because of new protocols which are forcing lenders to spend more time considering alternative solutions before starting proceedings. There is also government pressure on lenders to hold off, with some voluntarily agreeing to it for as long as six months.
But will the system cope? 'The very fabric of the justice system is being eroded. Buildings and facilities aren't maintained, staff levels are being cut. The service is constantly reduced.' The visible face of this decrepitude has been the rise in the numbers of litigants in person, most striking in family cases. With deteriorating economic conditions, this situation could worsen further. 'Housing and property cases are becoming a lot more high profile and the Government should start to listen,' he concludes with measured optimism.