Element in reclaiming costs falls under the concept of proportionality. CPR r. 44. 4(2) states that "where standard costs (which represent the normal measure of costs) have been ordered, the court will 'only allow costs which are proportionate to the matters in issue. ' The aim of this was for the Court to disallow legal representatives charging the Earth for extremely minor matters of litigation, so that costs must be proportionate to the importance of the litigation; a "sensible correlation" in the words of Adrian Zuckerman. (Zuckerman, Id at 271).
However, the Court of Appeal held in Lownds v Home Office that if a "process was necessary, a reasonable amount must be allowed in recoverable costs, regardless of its correlation to the subject-matter in matter… or its importance. " (Ibid at 272). Clearly, then, costs may still be owed by a litigator that are disproportionate to the importance of the claim. This would be especially important to the Small Claims Track where claims are below i?? 5,000 and legal fees may well be in excess of the amount expected to be awarded to a successful litigator by the court.
This puts strong practical and theoretical limitations on the ability to make small claims: unless a litigator is motivated more by vindication than financial reward, claims may well be rendered pointless if the case is particularly complex or requires much attention by legal representatives to the point whereby costs might become disproportionate. The legal aid scheme in England and Wales is run by the Legal Services Commission, which was etssablished by the Access to Justice Act 19997. It assists over two million people per year access legal advice, information and help.
The gross income of a legal Aid client, however, may not exceed i?? 2,675, or i?? 32,100 a year and is means and merit tested. 9 This is just above the average household income in the United Kingdom. 10 Clearly then, legal aid is available for many, but not so many that other methods of providing ways of funding access to civil justice are necessary. Furthermore, civil legal aid does not cover all cases that may be actioned in the county courts. For instance, it does not cover negligence.
Indeed, the situation described in 1956 by Peter Archer (Archer, 1956, p131) whereby "[The judge] has frequently to listen to litigants appearing without an advocate" can scarcely be described as favourable by any free-thinking Englishman. How can the law be described as a bastion of liberty and equality in England when men appear before judges in the Queen's Courts without proper representation? When considering the ability to make claims in the County Court, the provision of Legal Aid under the jurisdiction of the LSC can surely be described with some vigour as a positive development in English law.
Things are changing, however. "The Government has in any event indicated a clear wish to transfer funds from criminal defence to civil legal aid and particularly to social welfare cases. " (Edwards, 'Civil Litigation: a Public Service for the Enforcement of Civil Rights'). Concluding the ability to make small claims in the County Courts is a matter of considering whether the actual ability of the poorest member of society to bring a claim before the Court is existent. Clearly it is not. Legal Aid covers only some forms of litigation. Other methods require cash to be provided up front.
If we are to live in a society governed by law, then the poorest of the poor must be given access to the justice system equal to that of the richest of the rich. In theory, English law has an excellent development in the form of the County Courts for individuals and organisations to seek small claims. In reality, without the ability to finance these "disproportionately costly" cases, the ability to make claims is severely reduced and lopsided in favour of those who can afford litigation.
Articles from Journals Edwards, A. (2009) 'Civil Litigation: a Public Service for the Enforcement of Civil Rights' Archbold News, 7, 8-9 Mildred, M (2009) 'The development and future of costs capping' 28(1), 141-151 Zuckerman, A. (2009) 'Costs Capping Orders – the Failure of the Third Measure for Controlling Litigation Costs' Civil Justice Quarterly Volume 26 Editor's Note, 271-277 Zuckerman, A. (2007) 'Civil Litigation: a Public Service for the Enforcement of Civil Rights' Civil Justice Quarterly Volume 26 Editor's Note, 1-9 Zuckerman, A. (2009) 'Protective Costs Orders – A Growing Costs-Litigation Industry' Civil Justice Quarterly Volume 28 Editor's Note, 161-168