Cheap at the Price
A further meeting between the Lord Chancellor and her junior minister, Chris Fish, his political adviser, Jeremy Paxton, and the Head of the Policy Unit at which
(a)it is agreed that the group needs an ‘away day’ to accelerate getting through all the issues raised in Jeremy Paxton’s paper on “draining the legal swamp” as a preliminary to creating a strategy to meet the Manifesto commitments;
(b)the political adviser complains about the high and disproportionate costs of going to law and its resulting inaccessibility to most ‘ordinary people’ and
(c) the Head of the Policy Unit explains that (i) the real benefits of the law and its purpose is to secure compliance and that enforcement of individual rights and duties through the legal system is just a means to that end; (ii) given the economic and social benefits of living under the rule of law, the ‘regulatory cost’ of litigation may be cheap at the price; (iii) the public should therefore bear much of the legal costs currently borne by litigants; (iv) the judges provide a backstop to the shrinking of the public funding of litigation; (iv) that there is near universal ‘access to justice’ in the sense that compliance benefits rich and poor alike and (v) if litigation were limited to higher value claims it would create a ‘cheats’ charter’.
LC/SOS:Good to see you, PD.
PD:Good morning, Lord Chancellor, good morning Minister. Hello, Mr Paxton.
LC/SOS:PD, No.10 are keen for me to lead on strategising a cross-departmental programme to meet our Manifesto promises to “drain the legal swamp”. We are thinking that an ‘away day’ might help to speed things up.
PD: Sounds like a splendid idea. An opportunity not just to get ahead but also to maximise value for money for the taxpayer by eating and drinking our fill despite our normally and naturaly abstemious habits. I always find the full English breakfast the main challenge.
LC/SOS: I will ask my private office to fix it up as soon as possible and, for your sake, PD, I will ask them to keep it modest. Meanwhile, Chris and Jeremy have been running me through their concerns about legal costs and the overcharging by lawyers in civil cases.
PD:Might I just ask them to remind me so that we are all on the same page?
JP: As we were telling the Secretary of State before you arrived, PD, there is general public outrage about lawyers’ fees, with glaring and almost daily examples of overcharging, including the scandalous fact that legal fees can often almost equal what is being claimed in a case.Worse still, ordinary folk can’t afford lawyers even when they have a real need for them. So, the law is only available to the rich and to the rogues who seem to have no trouble getting the taxpayers to foot their lawyers’ bills.
PD:I take your points, Mr Paxton. By the way, I liked the alliteration, “the rich and the rogues”. Very good and, sadly in the public’s mind, often indistinguishable and for good reason. But getting back to legal costs, we in the Unit have found cases where the costs are actually higher than the total value of the case itself.
CF: Well I am glad we agree about the problem. It is, as Jeremy says, a scandalous situation where far too often the legal costs get close to outstripping the value of the claim.
PD:I am not sure about it being scandalous, Minister and I am not clear what you mean by “far too often”. Are you suggesting that it would be acceptable if lawyers overcharged less often and, if so, at what level of ‘oftenness’ would you think overcharging acceptable?
CF: Once would be too often in my view.
PD: Sorry Minister, I thought that in saying “too often” you had some limit in mind and some data or knowledge of how often lawyers overcharge.
CF: I don’t need any figures because, as I said, once would be too often in my book.
PD: On that understanding, I take it that what you mean is not that we have a scandalous situation on our hands where lawyers often overcharge but just that it is possible that lawyers may sometimes overcharge and if that were so it would be scandalous.
CF: If you like.
PD: Thank you for clarifying your concerns Minister. As it happens, we in the Policy Unit see very good reasons for costs on occasion to outstrip the value of the claim.
CF: Oh here we go again. How could anyone justify paying £10k in legal fees to get back 10 or even £12k.
JP: Chris must be right, PD. That can’t be justified. If that is happening, the lawyers are milking their clients.
PD: So you might think, Mr Paxton. In fact, I recall a picture of a lawyer playing the milk maid while farmers at either end of the cow pulled on its tail and the horns.
CF: An all too accurate picture of world.
PD: Engaging and graphic I agree: but it was and is a comic cartoon Minister. Lord Chancellor, we did a ‘cost benefit analysis’ in the Unit and concluded that even legal costs that exceed the sum claimed or recovered may not only be justified but may be good value for money and indeed perhaps cheap at the price.
CF:Ah, here we go with the statistics. What did Churchill say?
JP: There are lies, damn lies and …
PD:Yes. Thank you Mr Paxton. No, Lord Chancellor, I promise…no statistics.
LC/SOS:Go on then.
PD:As I explained earlier, free societies and free markets are free underthe law not free from the law. Indeed, if there were no law there would be no free market and no free society. They are both, as legal philosopher might say, creatures of the law.
CF:As you know, I don’t agree with any of that but, anyway, this all getting a bit high flown, PD.
PD:With respect, Minister, this is getting down to brass tacks. As I also explained earlier, if you leave humans to themselves to compete for power, wealth or just the basics of life you do not have a free society or a free market. What you have is a jungle where the strong become powerful and rich by stealing from the weak who are left powerless and poor.
CF: But you’re repeating yourself, PD. We want to get down to the daily realities.
PD:We do indeed, Minister. You and the Lord Chancellor saw what you call the “daily realities” when you went with the Parliamentary Group to Africa before the election. I understand you saw countries awash with resources, money, poverty and corruption and run by gangster regimes who were enriching themselves by impoverishing their people and vacuumingup the foreign aid which a mix of sentimentality and power politics was pumping into their troughs.
LC/SOS:He has a point, Chris. The facts were brutally clear. Most of the politicians I met were, as PD says rather bluntly, gangsters.
CF: But I don’t see where all this philosophy and breast beating is taking us, Patricia.
PD:Where it is taking us, Minister, is to where it took us earlier, that is to recognising that the law, and the right kind of law at that, is the reason why we, along with our friends in much of Europe, the USA and the Old Commonwealth, live in the wealthiest, safest, freest and most respectful societies in human history.
CF: A grandiose claim, PD. But again, I don’t see how that is relevant to the gob-smackingly astronomical fees charged by the boys and girls of the so-called legal profession.
PD:Minister, the law delivers the good life we enjoy only because most of the time when it matters most of us act in ways that fit in broadly with the law. It is that widespread obedience that ‘delivers the goodies’. And there are literally millions upon millions of acts and decisions taken in the UK every day that obey or, if you like comply, with the law. However, that obedience cum compliance depends on people believing that the rules will usually be obeyed or failing that, enforced. Hence, we need some public demonstration that supports that confidence in the law.
JP: “Pour encourager les autres” as Candide said.
PD:You are an adornment to our discussions, Paxton. Not only would Candide have been flattered to have those words attributed to him but Admiral Byng would no doubt be grateful to be remembered so long after his own unfortunate brush with injustice on the quarter deck of HMS Monarch. Anyway, it is a bit more than just encouragement.
CF: What more encouragement would anyone need than the threat of the law coming down on them like a ton of bricks.
PD:Many people, Minister, are simply honest souls. They fit in with the law out of a sense of moral duty; because they think it is right and\or want the approval of those around them. However, if they see the bad guys, be they burglars in striped jumpers, fraudulent financiers in chalk striped suits or cheating car makers, shop keepers and salesmen of all and any stripes ‘getting away with it’, they may lose heart. Soon they may end up copying them.
JP: Where’s your evidence for that?
PD:You can see it every day on the motorways where, despite the 70 mile an hour speed limit, we rip along at 80 an hour encouraged and comforted by the belief that everyone else is doing it and getting away with it. If such disregard became more widespread, the whole system would collapse
JP: So, you’re saying that the legal costs in individual cases are buying the obedience, the compliance it encourages in everyone?
PD:Helpingto buy. The rest of the law and the regulatory system play a part too. But you are only half way there, Paxton.
CF:And the other half?
PD:Even general compliance is just a means to an end. The end, indeed the purpose of it all, is not compliance itself but the delivery of the ‘good life’, the wealth, safety, freedom and respect we all benefit from by living in a law-abiding country.
CF:I am sure Patricia has found that all very interesting, PD, but it doesn’texplain why the lawyers cost so much?
PD:The cost benefit analysis we did in the Unit made two things clear, Minister. The first is that we should all be paying towards the legal costs of civil cases, just as we almost do for criminal cases, because we all benefit from the compliance they help secure. If we did that, the litigants would enjoy much lower bills. The second, as I have said, is that what litigation costs are helping to buy is the total value of all the wealth, freedom, safety, and respect we all enjoy as a result of living in a law-abiding country.
LC/SOS:So how much is all that worth, PD?
PD:We have tried in vain to calculate it, Lord Chancellor. However, with GDP at around £500,000 million, and not even taking into account the value of our freedoms, safety and respect, it is obvious that the sum of all the costs paid in all individual cases must be a minute fraction of the value we get in return.
LC/SOS:You are right and, we cannot put too high a price on safety, freedom and respect or indeed on the rule of law.
PD:You are right, Lord Chancellor. Justice is priceless…though I could work out how much it costs us.
LC/SOS:PD you are a cynic.
PD:I trust so, Lord Chancellor.
LC/SOS: But seriously, the case you make for us all to contribute to legal costs in civil cases and indeed in criminal cases is undeniable. Isn’t that something we should put in the strategy?
- PD. A matter for you, Lord Chancellor, although, I would advise being more modest in your approach.
JP:But the Secretary of State is right. Surely, we should seize the bull by the horns?
PD:Alas, you would be more likely to find yourself holding the enraged creature by the tail, not a good position if you want your Minister and the Lord Chancellor to survive to fight another day in the ring.
LC/SOS:But the whole system needs a rethink doesn’t it, PD? Aren’t we going in the wrong direction entirely? Over the years, haven’t we been cutting legal aid while increasing court fees and so cutting what the public pays in by increasing what the individual litigants have to pay.
PD:Your impression is correct, Lord Chancellor. Indeed, the point has been reached where, despite the prohibition in Magna Carta, we are actually making a profit from selling court services.
LC/SOS: Then we should make plans to put those trends into reverse as soon as possible.
PD:That is simply not an option, Lord Chancellor. The Treasury would never hear of it and you could not find the money in your own budget even if the Treasury would agree to your redirecting the funds.
LC/SOS:But then we should persuade them. In fact, I wonder if I should take the matter to the PM direct.
CF: You can’t be serious, Patricia. You know how she feels about lawyers and litigation.
LC/SOS:But if I explained matters?
PD:You would still look out of touch with public opinion.
PD:Because you would face a barrage of opposition in Cabinet, your party and the country.
LC/SOS:But again, I ask why?
PD:Simply, Lord Chancellor, because the people do not want the rule of law: what they want is money, security, freedom and respect which they already enjoy to a degree unprecedented in human history.
LC/SOS:You mean they are complacent?
PD:Much worse. They hold the law or at least litigation and the lawyers in contempt.
LC/SOS:Isn’t that a bit strong?
PD:Alas, no, Lord Chancellor. Just think of the apparent outrages that Mr Paxton’s paper depicts. The opinions his paper so accurately reflects are strong and widely held, albeit they are also completely mistaken..
LC/SOS: But as you say, they are mistaken. Surely, we can explain that.
PD:, I fear that ship set sail long ago, Lord Chancellor.For decades, all governments have vilified the judges for interfering with their schemes and attacking the lawyers for being fat cats. As for the public and the press, they see helping people to litigate as lining greedy lawyers’ pockets and, even worse, as fueling the so-called “compensation culture”. Meanwhile, business sees it as exposing them to higher risks and costs. And some misguided sociologists see litigating as corroding civil society and people’s sense of individual responsibility. Opinion on the matter is uncommonly homogenous.Hence, they will all oppose attempts to use their money, tax payers’ money, to help people bring private cases. But perhaps we can come back to that later.
LC/SOS:That is a bleak picture.
PD: It is bleaker still, Lord Chancellor, when you recognize that other public services are hugely popular and, in the competition for public funds, health, policing etc. will always win out ahead of aiding people get legal help. And when you see that there is even a limit to how much tax people are willing to pay for the NHS and the care of the elderly, you can guess how raising taxes to help litigation would go down. It is a non-starter.
LC/SOS:But if we don’t take a principled stand won’t legal aid in private cases simply vanish and anyone who is not rich be unable to enforce their rights? And then respect for the law will shrink away and with it all the good things the rule of law delivers.
PD:Thankfully, while a vital element, we do not just rely on civil litigation to keep the rule of law on the road and we can tweak and, as a last resort, we can rely on the judges to avoid that ultimate calamity.
CF:What do you mean by tweaking?
PD:We have always tweaked, Minister. We have deregulated the market so that legal services can be provided in new and cheaper ways and by new providers. For example, we have changed the law to allow no win no fee agreements so that the market rather than legal aid could take some of the strain. With our encouragement, more people now have legal expenses insurance tagged on to things like their house or car insurance. We have simplified procedures for small claims so people do not need lawyers. We are setting up websites for things like family law disputes. We are even allowing what one of your predecessors, Lord Chancellor, called TescoLaw, with businesses selling the services of their employed lawyers to their shoppers.
JP:OK, but there must still be cases where individuals need lawyers and cannot afford them. And how do the judges come into all this?
PD:The judges are our insurance policy.
CF: A likely tale.
PD:Not just likely, Minister, but true. Lord Chancellor, the judges have a marked tendency to see their job as dispensing justice. It can, of course, at times be inconvenient, even tiresome, but they are a stubborn lot and there is no means of dissuading them. In their enthusiasm for justice, they insist that the people have an ancient and inalienable right to bring their claims before the courts and to have a fair and effective hearing. The result is that the government needs to step carefully so as not to disturb what I believe Bacon called “the lions under the Throne”.
CF:More like self-appointed guard dogs, in my book.
PD:Perhaps, but, contrary to the popular aphorism about dogs, their bite is much worse than their bark.
CF: Well, they can bark and howl as much as they like.But at the end of the day, we are in charge.
PD:You may like to think so, Minister but as you, Lord Chancellor, may recall, your predecessors, against our advice, nonchalantly put up fees for bringing cases for unfair dismissal and other workplace claims. Initially it was a great success. It saved money and choked off claims, which brought smiles to the faces of the then government’s supporters in the business world. However, the judges then declared that such high fees were illegal in breaching people’s fundamental rights to pursue their cases in court. Indeed, the case breathed life back into Magna Carta.
LC/SOS:So, she did not “die in vain” but in fact lives on!
CF:Very funny, Patricia, but I doubt the PM would see the joke.
LC/SOS:The old ones, as they say, are the best, but my apologies. One should not mock the constitution. In fact, the last government should have been ashamed of itself.
PD:Ashamed? It is much worse than that, Lord Chancellor. That debacle is now costing you a lot of money that you do not have. People have claimed back the fees they had already paid. Others have demanded that the time limit for bringing claims should be extended to allow old claims that had not been brought because of the illegal fees. And business is furious. As I said, the judicial bite is much worse than its bark…or roar as Bacon might have said.
LC/SOS:So, I can rely on the judges?
PD:Yes, Lord Chancellor, you can, but beware. The judges are constrained by what constitutionalists call “Executive Deference”. That means they try not to interfere with government policies, especially where their decisions would affect spending on public services. However, there is a limit to their deference and it does not extend to tolerating blatant attempts to stop people coming to them for justice. And the more often they are provoked into intervening by such attempts, the bolder they will become.
LC/SOS:I see that. We need to tread carefully. Circumspecte agatis, as I think the lawyers say.
PD:We do. Your colleagues need to be reminded that if the judges are roused they might well end up dictating the policy and thus how much we spend on things like legal aid and the courts.
CF:That’d be monstrous.
PD:It would, Minister. However, after the recent debacle, that possibility may be a very useful shroud to waive at your Treasury colleagues if they come on the hunt for more savings on legal aid and the courts in the future.
CF:So, thanks to the unlikely help of the judges, we are untouchable.
PD:The judges often see us as ‘untouchables’ but, alas, Minister the Treasury never does. If the judges make us protect spending on justice, the Treasury will demand cuts elsewhere in your budget.
CF:How do we deal with that?
PD:We tweak and muddle through, Minister.
JP: So, it remains the case that in many instances only the rich can afford to go to court. That’s just not fair?
PD:You are right, Mr Paxton: it is not fair.
CF:So what do I tell my poor damned constituents when they come to my surgery needing legal help that they cannot afford and, often enough, faced by some rich s.o.b who can afford armies of lawyers. Tell me that, PD?
PD:Apart from your earlier suggestion that you tell them that lawyers are not good for them, presumably you will explain the government’s policy. And if that is not enough, perhaps you could add that they should be grateful to the rich for litigating at their own expense and thus helping uphold the culture of compliance from which even they, the poor, benefit.
JP: But be serious, PD. What about the ordinary people who, despite all the tweaking and muddling through, can’t get their rights? I mean, what about access to justice and all that. What was that Strategic Aim you mentioned last time… “Justice for All”?
PD:It was, and it has an unusual and disconcerting ring of truth about it.
JP: “Truth” when you just agreed that most people cannot afford the costs of going to court?
PD:We need to see those complaints about denial of access to justice in perspective, Mr Paxton. What people want is what they are entitled to in terms of wealth, physical and financial safety, freedom to make their own choices in life and respect from others. That is what, to a large degree, compliance delivers in everyone’s lives, rich and poor alike. In that sense, the benefits of enjoying our legal rights is widely enjoyed by rich and poor alike whether they can afford to go to court or not.
JP: But the rich enjoy more freedom and safety than the poor because they are rich, have more choices, have more opportunities and can use the courts.
PD: True, but they enjoy more of everything other than the miseries of poverty. But of course, denying legal help with disputes about housing, employment, welfare and other areas of the law which are aimed precisely at protecting the weak from the powerful is indefensible, corrosive and cynical. Embedding rights in law but then making them inaccessible is about as bad as bad governance gets.
CF: OK, OK. But something’s got to be done about getting lawyers’ pay down. They shout about justice, yet spend most of their time charging fees that only the rotten rich can afford.
LC/SOS:Ah, yes, the ‘fat cat’ problem as one of my predecessors called it.
PD:It is a difficulty we have taken on, Lord Chancellor. We have the most competitive market in lawyers’ services in the world. As I mentioned just now, we have removed rafts of monopolies and restrictive practices. As I mentioned earlier, we have even opened the doors to TescoLaw.
JP: But surely, you still have to go to a lawyer for legal advice.
PD:Not so. We have opened the market to non-lawyers. Indeed, anyone can set up as a lawyer in England without being a qualified solicitor or barrister. That is why the City of London is full of foreign and especially American lawyers.
CF:Oh, great. So we don’t just have our own lawyers coining it, but foreigners are getting their snouts in the trough too. I bet they don’t let British lawyers into their countries.
CF:I am delighted to confirm that many do not.
CF: “delighted”. How come, delighted?
PD: It means that we get the pick of the best lawyers in the world and so attract multi millions of pounds worth of legal business to the UK. It’s a great earner.
CF: Well, OK. But if the market is in such good shape, why are prices still so high?
PD:Sorry to go back to basics again, Minister, but when a person goes to court he is asking the state to enforce his claim through force if need be. As with committing a crime, if a person refuses to pay up or do what the court tells them to do, they will be arrested and imprisoned and/or have some of their property confiscated by sending in the bailiffs.
CF: OK. But so what?
PD:The “so what” is that imprisoning people or confiscating their property is very serious stuff. Hence, while we should not pay lawyers a penny more than the market allows, there is a limit to how much we can cut corners and standards of service without causing serious injustice. And if you cause serious injustice, people will lose confidence in the legal system and that will undermine the culture of compliance and the fundamental purpose of law to…
LC/SOS:…create the wealth, security, freedom and respect that we all enjoy.
PD:You take the words out of my mouth, Lord Chancellor.
LC/SOS:Well I suppose that is better than you putting them in mine… or is that the same thing? Anyway, anything else, Chris or Jeremy, before we adjourn?
JP: I have one other point, Secretary of State.
JP: The ordinary person in the street, yours and Chris’s and, I hope, one day my constituents, think that using the courts to get back small sums of money is using a sledgehammer to crack a nut.
PD:Ah yes. I had almost forgotten that point. Thank you for raising it. The Unit has given the matter serious thought. We imagined a situation where it was simply not worth going to court to recover anything worth less than, say, a thousand pounds.
CF: Well, is it?
PD:I would hope so. Otherwise, every miscreant of every stripe would know that as long as his cheating did not leave you out of pocket by more than a thousand pounds you would not take him to court and he could carry on regardless ripping off his clients for modest sums.
JP: A ‘cheats’ charter’.
PD:As ever, Mr Paxton, your alliterations make the obvious blinding. By the way, how did the selection interview go at Butminster South?
JP: A bit of a fiasco. The National Committee have called it in. They insisted that the short list be balanced with two men and two women candidates. However, a self-identifying trans-woman was shortlisted as one of the two women and the Women’s Section of the National Committee have cried foul.
CF: Sabotage…sheer bloody sabotage. And I hear that he/she is being advised by some human rights lawyer who no doubt is hoping to make his, or more likely her name through it.
PD: Or perhaps ‘their’ name?
(The sound of the door opening. Enter Sir William Topes)
Sir WT: I heard you were having another meeting, Patricia. I hope PD is not taking up too much of your time. Interesting as his Unit’s work may be, there is real business you need to be getting on with.
LC/SOS:You mean like schmoozing my Treasury colleagues, Bill?
Sir WT:That too, Patricia. But there are other questions, like the Court Service’s request to increase court fees, that need your attention.
LC/SOS: Interesting that you should mention that, Bill. PD has just been explaining the underlying issues and some of the fundamentals involved.
Sir WT: I imagine he has. Well no doubt all very erudite stuff, Patricia, but your advice on that should be coming from the Head of the Court Service, as PD well knows.
PD:Sorry, Bill. I was not meaning to tread on anyone’s toes but just responding to concerns expressed in Mr Paxton’s paper.
Sir WT: Well a little more respect for the chain of command might be helpful in future. Meanwhile, Patricia, you and Chris have a meeting booked with me now, so perhaps PD and Mr Paxton might be excused.
LC/SOS: But of course. See you both at the away day.
Sir WT: “…the away day”! What away day? Patricia, we need to have word. Don’t just stand there Mr Paxton, or you PD. Be gone.