Changes to UK funding will limit access to justice internationally
- Organization: Stella Dunn, The College of Law, UK; IBA Pro Bono & Access to Justice Officer
- Author: Stella Dunn
- Document Type: Article/News
- Creation Date: Thursday, April 19, 2012
- Submitted: Thursday, April 19, 2012
- Attachment: PDF
The IBA's Pro Bono and Access to Justice Committee not only promotes awareness of how lawyers can get involved in pro bono, it also keeps a watching brief on access to justice in an international context. The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill currently going through the UK Parliament includes measures that, according to campaigners, threaten access to justice for people across the world.
In his interview with the IBA in November 2011 (http://www.ibanet.org/Article/Detail.aspx?ArticleUid=4AF9338C-A313-409E-B3D6-2E4B729796B8), Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, talked about the need to cut 23% from his department's budget and the UK's "bloated" legal aid bill. Indeed much of the press surrounding LASPO has focussed on cuts to legal aid. However, it's the changes to conditional fee agreements (CFAs) - more commonly known as "no win, no fee" - that will impact on access to justice for people living outside the UK.
CFAs allow victims of loss to sue for compensation without paying legal fees upfront. If the victim wins, their lawyer receives an uplift on their fees. To cover the legal fees if they lose the case, the victim will be advised to take out "after the event" insurance. The premiums can be expensive (in some cases as much as the fees themselves). If successful, the victim can recover the cost of the uplift and the ATE premium from the other side.
LASPO turns this system on its head. The victim will no longer be able to recover the success fee or ATE insurance premium from the defendant. It's possible that they will have to pay these costs from their compensation (if no other funds are available to them). It's feasible that they will gain nothing from the litigation and so, effectively be denied access to a meaningful remedy.
How does this play out in the international context? There have been some high-profile cases in the last few years brought by victims of human rights abuses committed by multinational companies. In a landmark claim, brought in the UK courts, residents of the Ivory Coast sued the company Trafigura. 5 people died and approximately 100,000 required hospital treatment when toxic waste was illegally dumped in the country by a subcontractor of Trafigura.
The legal costs in this case were, by necessity, considerable. 50 lawyers spent 18 months on the case including visits to the Ivory Coast to take statements from those affected. They won the case and were awarded a compensation package totalling $45million to almost 30000 claimants. An individual received just $1500.
Under LASPO, the claimants would have borne the cost of the lawyer's success fee and their insurance premium - making a not insignificant dent in the $1500 award.
Sadly, amendments to LASPO designed to alleviate the impact of these changes put by the Opposition in the House of Lords have been defeated. And this, despite campaigning by various organisations including Amnesty International and a letter opposing the measures from John Ruggie, the UN Special Representative of the Secretary General for Business and Human Rights.
In future, those seeking justice in the UK for abuses committed by multinational companies may find the court doors closed.