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Access to justice

Back in the early years of the 19th century the English legal system had reached crisis. The court edifice was positively creaking. There were three common law courts, the Court of Exchequer, of King’s Bench and the Court of Common Pleas. In addition, if your case concerned equity, i.e. it was about trusts or you wanted an equitable remedy, such as an injunction, then you had to start separate proceedings in the Court of Chancery.

This was all very expensive. However, getting through any reform was very difficult. Around the country were various local courts which supposedly provided access to justice for the ordinary man. However, these were inefficient and in some cases the clerks that ran them were plain corrupt. Attempts to change this landscape and introduce a universal civil court were met with strong objections from those who had a lot to loose. Such courts would, they said, dilute the majesty of the common law. The truth of course was that if they worked they would take business from the Common Law courts and from the barristers who had exclusive rights of audience in those courts.

In the end, the County Courts Act of 1846 ushered in a new era of accessible and cheap courts, which could decide small cases for the ordinary man with the minimum of formality. You even didn’t have to have a lawyer at all. Almost inevitably though, over the years, the procedure in the County Court became more complex until eventually the rules they worked under became the same as the rules used by the High Court.

Today, the courts whose original aim was to bring access to the ordinary person are as far away and inaccessible as the courts of the 1830s. Not only has one had the recent announcement from Michael Gove, Lord Chancellor and Minister of Justice, that he intends to close 1/5th of all court buildings, but the removal of legal aid has seen the disappearance of lawyers ready and willing to carry out the work. This has come through in recent statistics from Cafcass (Children and Family Court Advisory and Support Service, who prepare reports for the court in disputed children cases) that in a 12 month period to April 2015 cases dropped by 27%. It seems that people are “muddling through” rather than take their disputes to court (in this case the relatively new unified Family Court). This though may be a good thing: it is right that people should look at routes other than court to resolve their difficulties. However, whether parties just doing the best they can will be in the long term interests of the children involved remains to be seen.

There is a strong sense of a quite crude manipulation of the justice system here. Physically inaccessible courts, removal of legal aid, plus a dramatic hike in court fees (£2,500 for a business to issue a claim of £25,000, for instance) all contribute to an environment where, just as in the 19th century, those who go to court will be those who can afford to or at the very least have the time and ability to navigate through the court rules.

Yet, on the back of the understandable desire for all governments to save money, much could still be done. A return to the original ethos of the County Courts, with a very simple book of rules. The use of basic modern technology, which would enable courts to be run in which ever buildings are available rather than creating any more massive and expensive court centres, a trend which seem to have started in the 1980s and which was a reversal of decades of much simpler and efficient use of resources. When I came to Norwich in 1981, the magistrates sat in the medieval guildhall, the county court in an office block on Chapelfield and the Crown Court in the Shire Hall and no one was any worse off than they are now with an expensive combined court. In Great Yarmouth the judge came once a month to dispense justice from the Council Chamber in the Town Hall!

Sadly, little of this may come to pass. The trend is presently all one way. Give it a few years and our MPs will once again be debating how to make justice accessible again. That famous saying by the philosopher George Santayana that “Those who cannot remember the past are condemned to repeat it” should ring loudly and often in the ears of politicians, but sadly it rarely does.

Julian Gibbons

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