An email obtained by the Star says Legal Aid Ontario is projecting a deficit of $46.7 million this year, despite the recent provincial government decision to invest an additional $150 million in legal aid services over the next four years.
The phrase “access to justice” has different shades of meaning. To the public, it usually means getting one’s “day in court”. However, for other justice stakeholders; the provincial government, the judiciary, law societies and the legal profession, it is a continuing struggle to strike a balance between fair, efficient and timely judicial administration on the one hand, and substantive and procedural justice, on the other. Ultimately, it is the perennial issue of the economics of law or, obversely, the law of economics.
Is the phenomenon of unrepresented or “pro se” litigants a result of recessionary downturn in the global economy or the historical effect of inflation escalating the cost of legal representation? Certainly, not only individual and corporate clients, but institutional clients are keeping a closer eye on the legal services bottom-line, expecting lawyers or law firms to consider alternative compensation arrangements, such as fixed fee/block fee and “hybrid” compensation agreements, and contingency fee agreements, in some instances.
“If it ain’t broke, don’t fix it” no longer curries favour with civil justice reform advocates. Take, for example, the recent sea change to Ontario civil procedure following the recommendations contained in The Civil Justice Reform Project 2007-The Osborne Report, authored by The Honourable Mr. Justice Coulter A. Osborne, Q.C. In a similar vein, Charon QC reports recently on the Review of Civil Litigation Costs: Final Report by The Honourable Lord Justice Jackson . At page 149 of Lord Justice Jackson’s Final Report, the Law Society of England and Wales made the following submission on the issue of fixed costs:
“The principle of fixed costs
The Law Society is not opposed in principle to fixed costs in the fast track, providing that there is the option to apply to remove the case from such a scheme if significant costs are envisaged at any stage. We also consider that it is too ambitious to try to fix costs for all PI2 cases and all other fast track cases at this stage. Any proposal to do so should be delayed until the proposed RTA streamlined claims process has been evaluated. To extend the principle of fixed costs could adversely affect access to justice or increase the number of unrepresented litigants bringing claims.
It also needs to be made clear that any fixing must take account of the processes. In the Law Society’s view, fixed costs will only reduce overall costs if changes to the process are made. If reductions are made without such changes then the likely effect may well be that solicitors will seek to recover any shortfall from the client. This means that there is likely to be further pressure on the principle, which the Law Society supports, that the client should not lose money from their damages.“ [emphasis added]
If we take the Law Society’s argument in extremis, then “fixed costs” make the “cure” of civil justice reform worse than the “disease” of lack of access to justice. Is a “civil Gideon” guarantee of counsel the answer? Not so, according to Benjamin Barton of the University of Tennessee College of Law whose recent article posted on SSRN: Against Civil Gideon (and for Pro Se Court Reform) favours pro se court reform:
There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered in Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation.
Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone.