Money and the English legal system
To understand the reality of the practical workings of the English legal system, and to comply with the professional duty to act in the client’s best interests, look first at money. The increasing use of terminology such as “funding”or “resources” may be seen as attempting to hide the reality of money control.
In the amended words of Bill Clinton: “It’s all about the money, stupid”.
In civil proceedings, money issues are crucial throughout the process. From the point of view of the potential claimant, money rules from start to finish.
First, a claimant may try to find a lawyer. In most cases, the lawyer will demand money up front to take an initial look at the case. It is not unusual for a lawyer to ask for £500 to look at the case documents.
Next, assuming that the lawyer has been paid, money for court or tribunal fees must be found. In this connection, the introduction of fees for employment tribunal applications has reportedly reduced the number of claims by more than half. There can be no clearer example of the influence of money over justice.
Next, if the case is resolved by settlement negotiations, the key issue will be the amount of money agreed to settle the case. The role of the lawyer is reduced to that of a financial negotiator.
If the case proceeds to a court or tribunal hearing, then money for advocates must be paid.
Finally, the question of costs arises. This is a purely financial matter. Claimants who lose cases may be bankrupted by the amount of the other side’s costs which they are ordered to pay.
It will be noted that the rights and wrongs, the strength of the case, questions of procedure and evidence, and least of all law, do not arise at all at any stage of the money-dominated process. If money can be found, then law, evidence and procedure can be analysed.
For a small minority of claimants, money obstacles to litigation are not a problem. The recent superinjunction/privacy case decided by the Supreme Court is a clear example. Legal fees have been estimated to exceed £1million, that is more than 100,000 hours work at the minimum wage.
Some claimants have trade union backing for their cases. Others may have legal expenses insurance. Others may have a sadly naïve trust in no win no fee deals. These are a very clear example of the key role of money. No win no fee deals involve, in essence, money calculations and the cost of after the event insurance.
In relation to criminal law, money matters are not so crucial, but there are many examples of the influence of finance. The use of fines, the cost of lawyers, and the disastrous introduction of the criminal charge, now abolished following the resignation of numbers of magistrates, all illustrate the power of money in the legal system.
Complacent faith in the rule of law in England, in summary the often-unchallenged view that no-one is above the law, utterly fails to take into account the fact that there is one law for the rich and another for the poor. This, an ancient cliché, is the reality. It also means that the great bulk of English civil law, with its complexities and nuances, much beloved of legal practitioners and academics, is of complete irrelevance unless money is forthcoming.
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