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30 April, 2009  
Mooning access to justice

The Senate Legal and Constitutional Affairs Committee is to make recommendations on seven terms of reference … The Devil gave Bedazzled’s Stanley Moon seven wishes … When it comes to “access to justice” will the committee be able to do any better than Stanley?

imageAustralia has inherited English law and, as Charles Dickens wrote:

“The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.”

Lawyers make business by selling access to justice. It is in their interest that access be difficult for the unlawyered.

The profession would deny that it deliberately creates access difficulties in order to make business for lawyers, but as US law professor Thomas D. Morgan concludes:

“However lawyers might like to claim the core value of furthering access to the legal system, then, their basis for doing so is questionable.”

In the 1990s a huge “access to justice” exercise was conducted in the UK by Lord Woolf, which culminated in the Access to Justice Act 1999.

Richard Abel (Cornell Professor of Law at UCLA) described that title as ...

“an Orwellian name, since it [the Act] severely restricted access.”

As far as costs were concerned, on January 12 this year Edwin Coe litigation partner David Greene said:

“It’s widely considered that the Woolf reforms were generally not a success. The reforms increased costs through front-loading fees, and because of that, and the use of conditional fee agreements, fees have gone up substantially over the last few years.”

The UK profession managed to deliver less access to justice and higher costs, while pretending it was complying with the community’s wishes for the opposite.

In the 1967 movie Bedazzled Stanley Moon sells his soul to the Devil for seven wishes.

imageAll Stanley wants in life is to win over Margaret (Eleanor Bron, pic, from the Stanley Donen version), a waitress at the restaurant where he works.

In the past, Stanley had always been tongue-tied with Margaret, which got him nowhere. For his first wish he asked the Devil to make him articulate.

Margaret became fascinated by Stanley’s conversational skill, but when the hapless short-order cook tries to switch from romantic talk to romantic action, Margaret is repelled.

To close that loophole, Stanley’s next wish is that Margaret be very physical, and she is – with everyone except Stanley.

For his third wish, Stanley asks that Margaret be in love with him, and she is, but the Devil arranges things so they are both already married, and racked with guilt.

No matter what Stanley wishes for, and no matter how carefully he defines each wish, the Devil always manages not to give poor Moon what he wants, while theoretically complying.

At the end of his wishes the Devil has brought Stanley no closer to his goal than he was at the beginning.

So it is with “access to justice”.

The public (Stanley Moon) continually asks for increased access to justice, and the Devil (the legal profession) grants these requests in ways that actually benefit lawyers instead.

The Australian Senate Legal and Constitutional Affairs Committee is currently engaged in an Inquiry into Access to Justice.

There are seven terms of reference. Here is the list, with the profession’s likely solutions (in brackets).

* The ability of people to access legal representation (access to justice really means access to lawyers).

* The adequacy of legal aid (stimulus package of a few billion $ for lawyers is required).

* The cost of delivering justice (regrettably, quality justice can never be delivered cheaply).

* Measures to reduce the length and complexity of litigation and improve efficiency (can be achieved by more procedural rules – thousands preferably).

* Alternative means of delivering justice (all cases which can’t support big lawyer fees must be sent elsewhere).

* The adequacy of funding and resource arrangements for community legal centres (add another $ billion to the stimulus package).

* The ability of Indigenous people to access justice (and another $ billion for that).

Solutions that the profession will not come up with include more widespread use of para legals, unbundling, judges assisting litigants instead of remaining remote from the fray, court staff who are not banned from giving “legal advice”, ADR but with no lawyers involved, and total deregulation of the legal profession (except in relation to in court advocacy).

imageSadly, according to the committee website, there have been zero submissions to this inquiry.

Since the Woolf (pic) reforms failed to reduce legal costs in the UK then the obvious solution is more Devil guided reform.

A Civil Litigation Costs Review is now underway under Lord Justice Jackson with recommendations due in December 2009.

If the Australian committee manages to have no significant effect on access to justice, largely because market manipulation by the profession will not be tackled, then never mind, there’ll be plenty of opportunity to make suggestions to the next “access to justice” reform exercise, and the one after that too.

In the end the Devil will always succeed in mooning everyone else.