More Accessible, Fair and Efficient?

So, Kevan Jones, when is anyone going to be arrested in relation to the Post Office scandal? Alan Bates writes:

You are probably familiar with the case Alan Bates and Others v Post Office Ltd. The high court found that I and 554 other former subpostmasters were right about the Post Office’s faulty Horizon IT system. What you might not know, however, is that this case would not have been possible without something called litigation funding.

This is when a third party provides the money for a legal battle in return for a share of the damages or settlement in the case of a victory. The arrangement worked very well for us. In fact, there would have been no justice for subpostmasters without it, given the exorbitant costs of the legal system in England and Wales. But there is now a concerted effort by big business to constrain access to litigation funding.

First, the good news. Recent new laws have been introduced to ensure cases like ours can continue to be financed by litigation funding. At the same time, a review into the sector is under way to ensure civil justice is “more accessible, fair and efficient”. However, elsewhere I’ve been reading claims that the subpostmasters were, in fact, “exploited” – and that the funders who bankrolled our case “hijacked the spoils” of the settlement. It has also been claimed that funders “severely limited the justice achieved”. Based on our experience, those claims are absolute nonsense.

It seems to be nonsense promoted by an outfit calling itself “Fair Civil Justice”, affiliated to the US Chamber of Commerce, an organisation that represents the interests of big business. It also seems that corporate interests have tried to paint us as the victims of a “secret financing” deal. Again, not true. We knew exactly what we were entering into; it was the only option we had left to expose the truth that the Post Office were determined to keep from us.

The terms of the deal were clearly explained by our lawyers. Our funders, the litigation financing firm Therium, extended our credit on a number of occasions when the Post Office cynically drove up our legal costs. Therium, and our legal teams, even took a haircut on their returns to ensure the victims group received some return as they went on to pursue the truth through further court cases, enabling convictions to be overturned and real financial redress to be sought.

If the Horizon scandal has taught us anything about our legal system, it’s that it is skewed in favour of those with deep pockets. Large corporations can exhaust their opponents’ reserves – both in terms of finances and resilience. A prime piece of evidence for this is an internal Post Office memo, released as part of the current statutory inquiry into the Post Office, which only came about as a result of the findings of our original case. It is from Post Office lawyers pledging to: “stretch out the litigation process so to increase costs in the hope that the claimants, and more particularly their litigation funder, decide that it is too costly to pursue the litigation and give up”.

Critics of the litigation sector have also argued for caps on funders’ fees. But that simply wouldn’t work. In our case, it would have just provided a target for the Post Office to aim for to achieve its stated goal of forcing us to “give up”. There have to be ways of discouraging these appalling legal tactics, not encouraging them.

It should be defendants who have to pay the legal bills of successful claimants – that would certainly make them think twice about cynically dragging a case out. It would save time for the courts, reduce suffering for claimants, and it would ultimately save money for all.

Without litigation funding, what has been called the “greatest miscarriage of justice in British legal history” would not have been exposed. We would never have got to the truth, or been able to open the door to obtain the financial redress the victims are rightfully owed. As Lord Arbuthnot, a great champion and supporter of our cause, put it recently: funders helped us in “blowing the bloody doors off”.

Constraining funders by effectively reducing the number of cases they can take on might serve large corporations with something to hide. But it certainly would not be in the interests of claimants. That’s not to say there aren’t ways of making civil justice “more accessible, fair and efficient”. Of course there are. I just hope the review puts claimants’ experiences and interests front and centre of its work to ensure that access to justice is enhanced, not narrowed even further.