As a guest on the Bill Good show this morning, I opined that our system of civil justice is broken.

I believe that access to the system is becoming restricted to wealthy institutions who have the resources to treat civil litigation as a game to be won at all costs.  The average person cannot afford to be on the playing field with such cynical opponents.  As a result only those individuals with significant wealth or with a case that may be worth a lawyer’s involvement on a contingency fee basis can entertain seeking “justice” from the courts.

How did it come to this?

Measures designed to enhance access to justice and streamline processes have had the opposite effect.  Changes to the Rules of Court, as Chris Harvey, Q.C. has alluded to in the editorial posted below, have required more legal resources to be consumed on every case.  A simple Chambers application, for example, once could be brought on two days’ notice with minimal paperwork.  Now, it takes a couple of weeks to get an audience with a judge after preparing, exchanging and filing binders of material.  Judicial case management, while having some positive aspects, means that litigants are expected to attend pretrial hearings much more frequently.

All this comes at a cost.

This cost is going to discourage people from hiring lawyers and force them to either abandon meritorious claims or attempt to represent themselves before the courts.  From a societal point of view, this cannot be desirable.  We (lawyers, judges and the public) have to stop paying lip service to systemic reform and take a good hard look at the civil justice system from the perspective of the average person.  A justice system that is the preserve of only the very wealthy is really no system at all.