CIVIL JUSTICE REFORM – RULES OF COURT – PROPORTIONALITY

Everyone knows … that for the ordinary citizen unqualified for Legal Aid

a lawsuit is quite out of the question

Lord Devlin

1. Introduction

   Visitors to this site will find many postings that illustrate the failure of the B.C. government to enact modern civil rules of court for the Supreme Court of B.C.  Its long awaited initiative was the first major overhaul of the 1883 English rules it previously enacted for the Supreme Court of B.C. in 1893. After spending a few short “research” days in England, it decided to impose on B.C. litigants new English Rules based on the questionable concept of “proportionality.”
   The B.C. Trial Lawyers Association and the B.C. Law Society did not approve the proportionality idea, nor did any local Bar Association to my knowledge. Only one judge of the 100 or so B.C. Supreme Court judges spoke publicly in favour of the idea. Despite this lack of support on 7 July 2009 the B.C. government announced that the rules it wants will come into force on 1 July 2010.
   These final rules are supposedly published on the government’s website at: http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/CivilRules07-07-09.pdf.   Unfortunately, the site is not available because: ”files are damaged cannot be repaired.” Hence, the following comments depend upon information acquired from recent press releases.
   Recent press releases indicate that the fuzzy concept of proportionality would only be voluntary and not mandatory as it consistently proposed. That is a step forward. Apart from this issue and a few other minor changes the new Rules will be little different from the old 1883 Rules.

2. Proportionality

    The B.C. government’s proposed new rules used the meaningless word “proportionality” as its theme. Apparently, the government expected judges to ration justice at the earliest stage of the litigation by denying litigants with minor claims the full right to certain discovery processes.  The underlying purpose was to prevent as many cases as possible from going to trial.
   At the beginning of any lawsuit the issues are not clearly defined. What may look like an insignificant claim when the parties file their initial pleadings can blossom into a substantial dispute involving hundreds of thousands of dollars. The opposite is also true. 

3. The English civil justice system and “proportionality” 

    In 1893, the B.C. system of justice was similar to the English system. Over time they drew further apart. England always had a divided Bar. Before aggrieved litigants can recover judicial compensation for a wrong done to them they must first see a solicitor. After that, the solicitor prepares the case for trial and employs a barrister to actually try the case. 
   The apparent reason for England instituting the concept of proportionality was because the average citizen could not pay for the cost or employing a barrister or pay the costs of the defendant if the plaintiff lost. It was thought that early intervention by the court would help the parties settle their differences without having a full scale and ruinously expensive trial.
   Here is an example of English barrister’s fees taken from a 24 August 2009 posting on the web. It reveals the briefing and refresher (daily) fee for four randomly selected trial barristers in Legal Aid cases:
   “The following table lists how much was paid by way of brief fees and refresher fees to barristers that were paid a brief fee in the action.
£
Barrister                 Brief Fee, Refresher
Lord Brennan Q.C.  250,000, 97,500
Robin Oppenheim   134,500, 58,000
William Edis             114,500, 54,750
Richard Hermer       104,500, 40,000

   Other barristers were also paid for work on the case but they were not paid brief fees or refresher fees and did not take part in the trial.” http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061101/text/61101w0003.htm
    For a five day, English plaintiffs in motor vehicle accidents involving damages of about $100,000 (Cdn.) Legal Aid would have to pay a top barrister around $370,000 (Cdn.). Often senior barristers insist on employing a junior. Add another $250,000 for an approximate total of $620,000. These are approximate figures for the English system. It has many unwritten practices that may not apply in every instance.
    Assuming the amount of these Legal Aid fees are reasonably close to barristers’ fees in a non-Legal Aid civil action, few English litigants could afford the cost of pursuing a civil trial. If they lost, they would not only have to pay their own barristers and solicitor, they would have to pay the fees for the defendant’s barristers and solicitor. 
   In an article written by Professor Herbert M. Kritizer of the University of Wisconsin and published n the ABA Journal in November 1992, Vol. 78, pp. 54-58, he compares the English system of fees and costs with those in American courts. There might be changes since then but probably they are not that significant.
http://users.polisci.wisc.edu/kritzer/research/law_misc/engrule.htm
    Quoting from Lord Devlin, Professor Kritzer says “Everyone knows … that for the ordinary citizen unqualified for Legal Aid a lawsuit is quite out of the question.”
   Professor Kritzer found that in a 1986 English study, plaintiffs in civil litigation avoided the risk of bankruptcy using at least two main aids. First, if they had few means or income, Legal Aid paid part of their costs. An estimated 28 percent of personal injury plaintiffs received legal aid. Even if they lost, they did not have to pay the costs that institutional defendants incurred in a similar action.
   Second, English plaintiffs who are members of a trade union do not have to pay their lawyers in a civil action. About 29% of accident cases in England are pursued by solicitors retained by unions.
    A mid-1980 study of settlement negotiations in 220 High Court cases found that defendants made a settlement offer to plaintiffs in just 53 percent of privately funded litigation. This compares to 66% of litigants funded by Legal Aid and 90% of cases financed by unions.

4. The Canadian civil justice system

   Canadian plaintiff’s lawyers may enter into a contingency agreement with their clients where plaintiffs pay their successful lawyers about one-third of the amount recovered from the defendants. But if plaintiffs loose at trial usually they do not have to pay their own lawyer any fees. However, they must pay the winner’s costs calculated from a published scale set by the government.
    In a B.C. accident case where a plaintiff recovers $100,000 in damages there is usually a contingency agreement where the plaintiff’s lawyer receives about one-third of the award or $33,000. If not successful, the B.C. plaintiff does not have to pay his or her lawyer anything since payment was “contingent” upon success.
    These figures compare with the English barrister’s fee where plaintiffs succeed in recovering $100,000. Since there are no contingency fees, English plaintiffs must pay their own barristers a briefing fee, a refresher fee and perhaps a junior’s fee of about $620,000. If not successful the English plaintiff would also have to pay the defendant’s barristers’ fees of $620,000 plus the defendants out of pocket expenses and the defendant’s own solicitors fees.

5. The American civil justice system

    America’s civil justice system is quite different from the English and Canadian systems. It has some similarities to the B.C. system since it does not have a divided Bar.
   However, unlike England and B.C., successful plaintiffs and defendants in an American civil action cannot recover from losers any fees and disbursements the winners had to pay their lawyers.  At most losers might have to pay winners the court filing fees and the sheriffs’ fees. Similar to B.C., plaintiffs do not have to pay their lawyers if the plaintiff loses. Using contingency fee agreements, they only have to pay a portion of their recovery to their lawyer if they win.

Bottom line:

1. Proportionality is an English invention designed to compel average litigants to settle without going to trial. It has no place in B.C. law where circumstances are quite different.
2. A real issue the B.C. government should have considered is whether the idea of loser pay costs should be abandoned thus allowing B.C. litigants greater access to a trial.
25 August 2009