Busting some myths about the legal aid bill

The Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently passing through Parliament, could deny justice to vulnerable people affected by human rights abuses committed by UK companies overseas. For instance, those affected by toxic dumping by Trafigura in Cote D’Ivoire. That’s because ‘reforms’ contained in the Bill will shift the burden of costs from prosperous  multinationals to impoverished victims, and further deter UK law firms from taking on cases.

A huge thank you to the thousands of you who have already asked for your MP’s support for a crucial amendment to the Bill. If you’ve not already done so, you can still take action online now

Where is the Bill now?

Unfortunately, the Bill was approved at its third reading in the House of Commons and has now passed over to the House of Lords. However, if we’re successful in building cross-party support for an amendment in the Lords, then the Bill with our amendment will pass back to the Commons.

This will be our very final opportunity to change the Bill, so we still need you to keep up the pressure on your MP. So please take action by contacting your MP now, forward the action to your contacts, or share it on Facebook, Twitter or your blog.

Is your MP toeing the Government line?

If you’ve already taken action and your local MP is Liberal Democrat or Conservative, they may have written back to you quoting the standard government line on the issue which, as we show below, is misleading and inaccurate.

Please let your MP know you won’t be fobbed off with the official line and they must continue to debate the Bill openly and ensure access to justice is upheld. We’ve prepared a template letter for you to send back to them, responding to the flaws in their argument. Download the template letter (pdf)

If you’d like to lobby in person, we’ve also pulled together a ‘mythbusters’ document (pdf) you may find useful  – or read on.

What is the Government saying?

The Justice Minister, Jonathan Djanogly has said: “I am not persuaded that there is anything fundamentally different about these cases which would warrant an exemption from our proposals.”

He claims that cases with merit will be “resolved at more proportionate cost, while unnecessary or avoidable claims will be deterred from progressing to court.”

However, we’ve put the Government’s arguments to the  experts and it’s clear that they’re flimsy, unsupported by evidence and with little bearing on the kinds of cases we’re talking about.

Why their arguments don’t stack up

It will still be possible to bring claims against multinational companies once the Government’s reforms are implemented

It will, but whether cases are taken up depends on the willingness of law firms to act on behalf of overseas claimants against UK multinationals. Due to the huge risks and costs attached to such cases, only nine have been taken up in the last decade. By changing the balance of costs in favour of the defendant, they will become even less viable.

Claims with merit will be resolved at more proportionate costs, while unnecessary claims will be deterred from progressing to court

Costs may seem disproportionate to the damages, but this doesn’t mean the case shouldn’t be brought. For instance, the costs in the Trafigura case were £50m while the out-of-court settlement of damages amounted to £30m or £1000 per claimant. However, the high costs reflected the difficulties and resources required to collect evidence from 30,000 complainants in an insecure and unstable environment.

The Government’s reforms are necessary because ‘no win no fee’ arrangements can currently be pursued with no real financial risk to claimants and the threat of excessive costs to defendants

The excessive cost to multinational companies defending these cases is a reflection of their willingness to devote enormous resources to defending claims, often by deluging claimants’ lawyers with disputes on points of procedure. On the other hand, claimants are invariably impoverished inhabitants of developing and emerging countries who lack the resources to pay for legal action. The new Bill will tilt this already uneven playing field even further against the complainants.

Claimants who lose cases will avoid or significantly reduce the need for expensive costs insurance as they will generally not have to pay a winning defendant’s costs because of ‘qualified one way costs shifting’

‘Qualified one way costs shifting’ doesn’t actually address this issue since, whatever the outcome of the case, claimants will need an insurance policy to cover their own lawyers’ costs. And costs are likely to be high in these cases because of the logistical difficulties of gathering evidence in foreign countries, in addition to security costs.

The Governments’ reforms will include ‘damages-based agreements’ (DBAs) which are particularly suited to group actions, where lawyers’ fees may be recovered as a percentage of the damages awarded to successful claimants

DBAs may be appropriate in a country such as the US, where much higher levels of damages are awarded. However, in the UK compensation is relatively modest so if the costs burden was shifted from defendants onto claimants, as the Government intends, victims would be denied a proper remedy. This is particularly true for claimants from developing and emerging countries where damages are calculated at local rates – generally lower than for UK victims – but the lawyers’ fees reflect the UK’s high level of legal costs.

Remind your MP the legal aid bill doesn’t stack up

Now you’re armed with our mythbuster, dig out the response from your MP and drop them a line – here’s our template letter PDF as a starting point.
And if you’ve not yet contacted your MP, there’s still time. You can take action online right now