This paper was presented at two Continuing Legal Education Society of British Columbia courses - the Civil Litigation Boot Camp 2010 and the Rules of Court 2009.
For those of us who take cases where contingency fees are generally inappropriate, the access to justice issue is not a remote and histrionic cry of the Civil Justice Reform committee. Unless you have a rarefied practice, it is a reality. How often have you thought "I couldn't afford to hire myself if I got into a dispute"? What does that tell you about the affordability of the civil litigation process? How many cases have you turned away or your client decided not to pursue because they would cost too much? And how many of those have been meritorious suits of some substance? How many cases have run out of steam as costs have mounted and funds run dry? How many cases have settled on less advantageous terms because plaintiff or defendant could not afford the costs?
Access to justice is one aspect of the problem. Economics is another. If possessed of all relevant information, a business or an individual will obviously not pursue litigation, or defend it to trial, if the costs exceed the gains to be obtained from doing so.
The higher the cost, the higher the hurdle that litigants must leap to gain access to the system. If we can reduce costs by intelligent planning and practice we can increase access to justice, improve the economics of civil litigation for clients, increase the volume of cases for the profession, particularly younger lawyers and help restore faith in the system of justice in BC.
This paper proceeds on the basis that there is much that can be done by counsel working within and around the rules which currently exist, and any rules likely to replace or amend them, to contain costs and make those costs at least somewhat responsive to the case in question. Trying to make the costs proportionate to the case seems like an unexceptionable idea, but it has attracted a lot of suspicion in the debate over reforms to the Rules, generally because of concerns that the quality of justice will be unacceptably downgraded in cases involving less money. Cost cannot be the only factor in a decision as to how to run a case, but in most cases where the litigant is funding it, it must surely be an important factor.