Sounds like a barmy question don’t you think?
Well, if you wanted another example of how complicated modern life is becoming then one needs to go no further than to consider the case of Coventry & Others-v-Lawrence & Another which the Supreme Court (SC), formerly the House of Lords, considered earlier this year.
The SCs reserved judgment was in fact given this week.
In brief the case that the SC had to consider was whether the legality of the Access to Justice Act 1999 (AJA) could be challenged. The AJA allowed conditional fee agreements (CFAs) to be used more widely and created a regime where unsuccessful parties had to pay the winner’s solicitors success fee and the after the event insurance premium, which together became known as additional liabilities, on top of the winner’s normal reasonable base costs. These additional liabilities could increase the overall costs payable by the loser by a very large amount.
At the time when parliament was considering the bill that became the AJA 1999 MPs had to consider how to give the public access to justice when at the same time legal aid was being reduced dramatically. The regime created by the AJA emerged from this context.
Criticism of the AJA regime started to build up after it came into force in 2000. In 2013 the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force and LASPO changed the position significantly as success fees and the full cost of after the event insurance premiums were no longer to be paid by the loser. This change came too late to assist the defendant in the case being considered by the SC. Mr David Coventry and another defendant had been successfully sued by Katherine Lawrence and another claimant. Mr Coventry argued amongst other things that the payment of the additional liabilities required of him infringed his article 6 rights to a fair trial and this was therefore in contravention of the European Convention on Human Rights.
So what was the result of the SC reviewing these matters?
By a majority of 5 to 2 the SC concluded that the AJA regime was not incompatible with article 6, but rather that the regime was as a whole a rational and coherent scheme providing access to justice to those to whom it would probably otherwise have been denied.
The AJA regime used by countless individuals and lawyers since 2000 remains according to the majority of the SC a valid regime.
If the SC had decided otherwise it would arguably have meant that everyone who had sought to comply with the law of the land as set out in the AJA would have been complying with an invalid and therefore illegal scheme.
Now, would that not have been truly barmy?
