To fix civil justice, the new government has a mountain to climb

Overflowing prisons and delayed rape trials are easy for politicians and the public to grasp as a crisis with immediacy – something they share with raw sewage in our rivers and on our beaches. Accordingly, criminal justice featured prominently in all manifestos. 

Problems in civil justice are more like climate change – an existential threat, but one that, day to day, many find easier to ignore.

Yet, swathes of our civil justice system are also at breaking point, forcing the rule of law to operate while maintaining a stress position.

The backlog in the Crown courts gets attention because of the impact on criminal trials, and by extension complainants, witnesses and defendants. Causes of delay, like a cancelled dip in your local river, include sewage leaks.

Also affected by delays are the money claims that go through the Crown courts. The, in many ways exemplary, Technology and Construction Court is also seeing a growing backlog. (Some suggest it is a ‘victim of its own success’.)

The impact is on business confidence in legal remedies, cash flow, and a chilling effect on risk taking and enterprise.

Of course, an unpaid business debt can ruin lives.

Devastation is even more to the fore when individual compensation is not achievable.

Many problems in the justice system, from legal aid rates to the crumbling courts estate, require funds to fix.

But there is a now-entrenched policy mindset on compensation and remediation that could be changed without a big call on the public purse. On personal injury, employment and housing, changes to costs and other rules which were brought in to make claims harder and less worthwhile to bring, and more challenging to represent, mean many just claims result in incomplete recompense – or they are simply never made at all.

Indeed, the state often winds up picking up the tab of unmet legal need.

And we need to talk about compensation schemes, which is where some serious public funds are now engaged. On Windrush, infected blood and the Post Office Horizon prosecutions scandal, the performance of the ad hoc compensation schemes established has been a shocking failure.

Government needs to look at why. A likely reason is that the schemes are badly administered, under-resourced, and designed to keep lawyers away from their just administration.

The civil service culture around respect for the rule of law and the principles of compensation clearly needs work. Fiona Scolding KC’s article for the Gazette, examining Sir Brian Langstaff’s final report on the infected blood scandal (26 June) highlighted health department civil servants’ central role in blocking honesty, accountability and liability.

That is of a piece with RWK Goodman partner Paul Rumley’s experience, related to the Gazette (7 May), of trying to rectify ministerial and civil service ignorance on the principles of compensation.

Away from publicly funded compensation, we also saw it with the administration of the scheme to compensate the small business owner victims of mis-sold interest rate swaps products. The scheme’s design by the regulator, endorsed by government, sought to keep law and lawyers out, instead letting banks superintend their own schemes, mostly administered by accountants. Complaints abounded.

And there is more, of course, much more that needs to be done. These are just some examples.

What would good look like for the civil justice system? Maybe on entering, parties should feel like Truman Capote’s creation Holly Golightly when she enters Tiffany’s. ‘Calms me down right away,’ she says. ‘The quietness and the proud look of it; nothing very bad could happen to you there.’

Or if you can’t picture Holly at Snaresbrook, perhaps another store, John Lewis, should be the model. On my experience of the department store, if you bring back an item that hasn’t worked for you, you are steered to a side room where the choices are a full refund or a direct replacement.

And if we can’t get civil justice, and people’s experience of it, back to something with a proud look, with the ability to calm through fairness, then the alternative for many is anger and despair – emotions that too readily find other outlets.