This is a somewhat controversial subject. For one side of the legal profession (the “Claimant side”) “access to justice” is a concept which is of fundamental importance in law and crucial to a developed and functioning society as a whole. After all, without access to it, what good is justice? Of course in some instances justice comes naturally but in many cases, justice has to be actively sought. In such cases, if the seeking process is made too complex, expensive or otherwise prohibitive, access is inherently denied.
On the Defendant side is a theory that the term is used cynically. The theory being that the Claimant side of the profession isn’t actually too concerned about the injured Claimant having access to justice but rather it is selfishly concerned with the financial consequences thereof i.e if the Claimant can’t access the justice system, how will the lawyers receive an income?
Regardless of why it used, how it is used, whether it should be used etc, the actual meaning of the term is not open to misinterpretation. It is an absolute right which cannot be diluted or denied.
Chapter 40 of the Magna Carta 1215 outlines the general idea of access to justice. The concept is then reiterated in statutory form in the 1297 version (Chapter 29) : “We will sell to no man, we will not deny or defer to any man either justice or right”.
In Part 2 of his Institutes of the laws of England (written in the 1620s but published in 1642), citing the above chapter 29, Sir Edward Coke commented “…every subject of the realm, for injury done to him…by any other subject…may take his remedy by the course of the law and have justice and the right for the injury done to him, freely without sale, fully without any denial and speedily without delay…because delay is in effect a denial….”.
In his Commentaries on the laws of England (1765-1769) Blackstone cited the above and stated : “A right of every man is that of applying to the Courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every mans life, liberty and property, Courts must at all times be open to the subject and the law be duly administered therein”.
In Chester v Bateson [1920] 1 KB 829 where delegated legislation prohibited the bringing of certain legal proceedings without a ministers consent, the Divisional Court held that the regulation was invalid. Avory J stated that “Nothing less than the express words in statute taking away the right of the Kings subjects of access to the Courts of justice would authorise or justify it”.
In Attorney General v Times Newspapers Ltd at p309, Lord Diplock stated “The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established Courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities”.
In 1932 the case of Donoghue v Stevenson (decomposed slug in ginger beer case) brought about the neighbourhood principle thus enabling a party to use the Courts to seek and obtain redress for injury caused by a party with whom there was no contractual relationship. In other words, prior to this case, if you suffered injuries as a result of someone’s negligence, unless you had a contractual relationship with that party, you could not seek any redress via the Courts.
Since the above 800+ year history, in England and Wales we have a Court system which is designed to enable parties to resolve their disputes. It is by no means a perfect system but it does not have to be perfect to facilitate access to justice.
When fees or other parts of the system (Court closures, absence of legal aid, denial of access to lawyer of choice etc) render the system practically inaccessible, we have crossed a line and find ourselves in an undesirable situation whereby access to justice appears to be present whereas in fact it is not.
At the time of writing, we are seeing Court’s being closed, law firms being closed, litigants in person having to find their way through the legal system alone, Court fees at a record high, Court staff being cut, etc, etc. If we are not already there, we are very close to a system which prevents access to justice in some cases.
The Government and the Insurance industry are doing their level best to deny / dilute access to justice and this has to be opposed. Yes it is about jobs in the legal profession but it is also about the 800 year old right to access to justice. Whichever reasoning one prefers our ancient rights must be jealously guarded at all costs.
Guy Platt-Higgins