Valueless legal rights-the future?

Valueless legal rights-the future?

Lord Neuberger (President of the UK Supreme Court) and Lady Hale (Deputy President of the UKSC) have spoken of the fundamental need for and importance of openness, transparency and access to justice in a free and open society.

In doing so, they have also voiced some concern that, without the ability to enforce legal rights, those legal rights become valueless.

Issues considered by Lord Neuberger and Lady Hale on 2 October 2013 included closed sessions (or closed material procedures), anonymity in the Family Court and Court of Protection (COP), cuts to civil legal aid and proposed reforms to judicial review.

Closed sessions

Lord Neuberger spoke of the conflicting principles of open justice and ensuring relevant material is placed before the court and parties are not prevented from producing evidence because they cannot do so in open court.

His feeling was the courts should try to minimise the extent to which it is necessary to go into closed sessions and, where they can’t be avoided, to seek to mitigate the consequences and injustices of doing so. Lady Hale added there is a responsibility on the lawyers, and particularly on the lawyer requesting the closed sessions or closed material procedures, to consider what this will add and whether the benefits will outweigh the disadvantages.

Anonymity and secrecy in certain proceedings

There was also a recognition that certain cases, for example those involving families or very vulnerable individuals, might need some degree of anonymity and secrecy. This was particularly where, without these sensitivities, such parties might be prevented from seeking justice where they do not wish to take their private matters to a public court.

Civil legal aid funding

Lord Neuberger voiced his fear that, without legal advice or representation, parties might choose to forego their legal rights, thus rendering those legal rights valueless.

Alternatively they could seek to enforce them as a litigant in person thereby adversely affecting themselves and potentially all court users (who would find their cases slowed down in a clogged up system).

Judicial Review

Whilst appreciating there may be abuses of the current system which need to be cut down, Lord Neuberger’s view was that any limitation of rights to complain about infringements of the state etc have to be looked at with great care and be justified.

Let us know what you think

  • Do you agree open justice is fundamental in a free and open society?
  • Do you have any experience of the court granting or refusing to grant a closed session / closed material procedure and whether you thought they were right to do so and what effect you think it had on the outcome of the case? How do you think the courts can best balance competing interests in these circumstances?
  • Do you have experience of being or acting against a litigant in person and the effect this has had on the way the case has been managed or proceeded?
  • Do you have any experience of the effect the civil legal aid cuts have had?

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About the author:

Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.

Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.

In practice, Virginia acted in a variety of general commercial disputes covering areas including  intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.

Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.