A fundamental right
The European Convention on Human Rights (ECHR) names due process and access to justice as fundamental human rights. You would think that this would settle it always and everywhere, but it does not. Whether citizens actually have access to civil justice depends on practical matters, such as the ability to finance the costs of litigation. Complex liability proceedings often involve high costs. These include the costs of legal aid and often experts.
Only for the rich?
There are few citizens who are able to bear such costs without special provisions (such as legal expenses insurance, for example). The question to be asked is whether only those with a lot of money have the fundamental right of access to justice.
In addition to the costs necessary to conduct proceedings, there is also the risk of a court cost award in the unlikely event that the proceedings are lost. The risk of a court cost award can be so daunting that it frustrates access to justice. In the Netherlands, this risk is relatively limited because the courts use fixed amounts, which have no direct relationship to actual costs. In other countries, such as England, it may involve an order to pay the other party's actual litigation costs, which can lead to very high orders.
The government
The government has an important role in shaping citizens' access to justice. That role is fulfilled, among other things, through the regulation of government-subsidized legal aid for citizens with limited financial resources.
Those rules determine who does and does not qualify for subsidized legal aid and what fees are paid. Fees for lawyers are limited, expert fees are not reimbursed, if at all, and the risk of the litigation award remains in full force.
The legal profession
The legal profession also has a responsibility. This usually involves making flexible financial arrangements with the client that allow for the litigation.
Very recently, after a year-long experiment, the Dutch Bar Association decided to make it permanently possible for lawyers in personal injury and death cases to enter into so-called result-related fee agreements. Specifically, such agreements mean that from No Cure No Pay exist. This removes financial barriers to access to justice. Lawyers are not required to make such arrangements. Legal seekers remain dependent on lawyers who are willing to do so.
Mass Claims
In recent years, group or mass claims have been increasingly involved. These are proceedings brought on behalf of large numbers of individuals. The ability to bring such claims contributes to access to justice, in part because the costs of the proceedings can be borne more easily by the group than by an individual. The Law on Settlement of Mass Damages in Collective Action (WAMCA) makes it possible for victims to collectively recover damages in cases of mass damage through a foundation or an association. The law requires that the foundation or association must have sufficient funds to bear the costs of instituting the proceedings. In practice, such proceedings are often financed by professional funders with whom No Cure No Pay-agreements have been made.
Finally
The decision to make the making of No Cure No Pay-agreements in personal injury and death cases once and for all is to be welcomed. Access to justice, especially in cases of great financial importance, is served by this.
Even in cases of relatively low financial importance, it is significant that access to justice is fulfilled by arrangements that allow litigants to take their case to court without significant financial barriers. For those cases, No Cure No Pay usually no outcome. Recently in Brussels was the annual meeting of the Pan-European Organization of Personal Injury Lawyers (www.peopil.com). Access to justice was a topic discussed there. One of the speakers suggested that member law firms collectively provide money to fund important cases in Europe. For many a new thought that will lead to further reflection. Good that the topic remains on the agenda.
If you have questions about this blog, please contact the author, John Beer.