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Fatta la Legge, Trovato L’inganno

The Minister for Justice, Equality and Law Reform (the Tanaiste), has declared his intention to introduce a new system for establishing legal fees. It is early to say, but this seems to be directed at legal fees in litigation. His plan is based on the Report of the Legal Costs Implementation Advisory Group.

Civil litigation is an adversarial process. It is not a search for scientific truth. In short, it is emphatically not an inquiry.

The Minister has recently expressed misgivings, to put it at its lowest, about the costs he says will accrue in the Mahon Tribunal, which is an inquiry. So, we must assume he appreciates this difference.

What does a civil lawsuit do, then? It determines a kind of truth, one predicated on the evidence presented. The law of evidence is key to considering this. It determines upon whom the onus of proof lies and the extent of the burden of proof. These ideas themselves demonstrate the absence of a search for absolute truth in the process.

It has been suggested that the litigation process results in a legitimacy conferred by the procedures followed, rather than a legitimacy in the outcome.

That this is the case is clearly seen in the law relating to Legal Professional Privilege. This is a privilege bestowed on a party to litigation. In general, it means that communications between the litigant and his/her lawyer in contemplation of litigation, or during the course of litigation, is privileged and will not be disclosed to the court. Thus, despite the communication revealing something relevant to the dispute, the court judgement will not take that information into account. (In fact the judge will not even see the evidence).

The UK has adopted procedural rules (“CPRâ€?) following the Woolf report, “Access to Justiceâ€?. The Woolf report expressly recognised and advocated “a more proportionate but workable system, not one which is theoretically impeccable but unaffordableâ€?.

That money was required had previously, at the beginning of the last century, been recognised by the pithy remark that “…the Courts of Justice were open to all, just like the Ritz Hotelâ€?. Affordable, however, should not mean cheap.

In any civil litigation there will be at least minimal fact finding activities. Usually the activities will be extensive, but always they are limited. Furthermore, one party will seek to establish facts and the other party will seek to deny them (and may even refute them).

The key to this process will be resources. If the parties do not have “equality of armsâ€? the presumed legitimacy of the process, even as “procedural justiceâ€? (and not a search for truth), will be undermined.

We have seen:

a) the abolition of the civil jury in personal injury actions.

b) the establishment of a Personal Injuries Assessment Board.

c) the time for the commencement of legal proceedings seeking compensation for personal injury reduced from 3 years to 2 years.

d) the prescribing of potential reduction in entitlement to recovery of legal fees if injured persons do not send a claim letter within 2 months (of their injury).

Each of these provisions were and are calculated to benefit the defendants in such actions. Those defendants are, usually, backed by insurance cover and insurance companies. The insurance companies are the beneficiaries. In b), c), and d), the Minister for Justice, Equality and Law Reform (the Tanaiste) was their benefactor.

It is important that his proposals for changing the justice economy will not result in the creation of “yellow packâ€? legal representation, that is, representation on the cheap and without resources for injured persons, and resourced representation for the insurance companies and other wealthy and sophisticated litigants.

Fatta la Legge, Trovato L’inganno, means “He who makes the law, knows the trick around itâ€?

Hopefully, the Minister for Justice, Equality and Law Reform (the Tanaiste) will ensure that the trick benefits injured citizens and not insurance companies.