Excess litigation cost has for too long blighted our civil justice system. It is a blight which undermines our ability to provide effective access to justice. If litigation costs are unaffordable, then, Lord Woolf observed in his Interim Access to Justice Report, it ‘constitutes a denial of access to justice’. He was right. It does not however simply amount to a denial of access to justice. On its own that would be bad enough. But effective access to justice is an essential element of any democratic society committed to the rule of law. Where litigation costs deny effective access to the justice, this will in due course undermine belief in, and commitment, to the rule of law, and that results in the undermining of our democracy and all its modern features – health, education, and welfare. In this country, we tend to take the rule of law and all it carries with it for granted, but as the great Judge Learned Hand put it, ‘If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice Disproportionate costs improperly ration justice.
Over the last ten years, civil litigation costs have continued to increase. In that respect the Woolf reforms, one of the principal aims of which was to provide a cure for excess litigation cost, failed. Indeed, I regret to say that the Woolf reforms are generally thought to have increased litigation costs. Certainly, the reforms, or at least some of the way in which they have been implemented, have front-ended costs, which is particularly unfortunate given that the great majority of cases settle before they get to trial.