Are the English courts becoming the preserve of the world’s super-rich? London is seen as the world’s capital of “divorce tourism”, while the richest 1% are increasingly using England’s courts to settle business and family disputes. The number of commercial disputes where one or both parties are foreign has risen from 65% in 2008 to 81% in 2011, while 24,000 of the 150,000 divorces in English courts involved international parties, according to reports this week.
If this is the case it is no bad thing, according to government officials. The £300m, 11-storey Rolls Building off Fetter Lane, central London, was built to handle high-end commercial disputes for a mostly foreign clientele. The justice secretary, Ken Clark, said of the building, which opened last summer: “The provision of modern, high-quality services for all parties will present the opportunity to market the facility at a global level … to maintain the unrivalled work of the high court and English law.”
While there is much merit in encouraging the export of some English law (libel and superinjunctions excepted), it should not be done at the expense of domestic justice. Yet that appears to be precisely what is happening.
There is ample anecdotal evidence that this focus on making London’s commercial courts attractive to rich foreigners may be at the expense of the courts providing justice to English citizens. Legal aid is being cut, along with interpreting services, nearly 140 magistrates courts are being closed, and historic buildings sold. The Rolls Building may cater to big international business, but what about smaller local companies that provide most of the country’s innovation, employment and tax revenue? Will they still be able to afford to litigate?
Russian oligarchs Boris Berezovsky and Roman Abramovich may settle their multimillion-pound business disputes in the Rolls Building, but the path to justice for most domestic litigants is a sadder, seedier journey in courts suffering decay and neglect. Total spending on the courts in 2010-2011 was £1,772.6m (up slightly from £1,700.8m in 20010-11). Nearly half goes on staff and judiciary; civil business accounted for £612.5m.
Litigants pay fees to use the courts but they don’t cover the whole cost. These fees are increasing, but while that may provide a barrier for those on lower incomes, they are a fraction of the costs of a big business dispute. The argument is that while the taxpayer may lose when two rich foreigners sue each other in the English courts, the overall result for Great Britain plc will be a net gain: English lawyers, experts and investigators will eventually pay more tax.
This is a similar argument to that made for the anomalous tax exemption for non-doms: that even though they don’t pay full tax, they benefit Britain with their spending. However, it could equally be true that they inflate the going rate for services. This is problematic when it leads to inflation of housing costs, but downright disastrous when it prices ordinary people out of justice. These policies exist without data to back up their claims.
We pay a lot for our court service, but it’s not enough. Courts are under-resourced, which leads to delayed justice – particularly in criminal courts. There aren’t enough courts to meet demand and facilities are in desperate need of modernisation. If we’re a society built on the rule of law, then justice is one area where we shouldn’t skimp, and we should be able to clearly see what we’re getting for our money.
There are three things the public needs to know about courts to ensure justice is being done: 1) who is using the courts (court listings with real names of parties); 2) for what purpose (case details and documents); 3) the result (results list). The tragedy is that this most basic information is not available, a situation that has prompted City University’s Centre of Law, Justice and Journalism to create an open justice initiative to make recommendations on greater transparency and access to court information.
In The Silent State I took readers on a tour of England’s top courts where I put the rhetoric of open justice to the test. At the Royal Courts, the top civil court, the experience was pretty good. However, at the top criminal court, the Old Bailey, things took a decided turn for the worse. The main entrance is reserved for lawyers, press, and court staff, while the public has to make do with what looks like a tradesman’s entrance down a litter-strewn alleyway. The reception is officious and unfriendly. There are signs threatening contempt of court everywhere. There is minimal information about the cases, and the view is obstructed in most galleries so only those in the front row can see all the participants – and even then they must lean forward on to the railing, a posture that usually earns a stern telling-off from the usher. Go to magistrates courts and the experience is wildly varying, but the overall sense is that the public are there on sufferance.
If the public can’t see justice being done, or afford the costs of justice, then the entire system becomes little more than a cosy club solely for the benefit of judges, lawyers and their lackeys, a sort of care in the community for the upper middle classes. We need to open up courts to the commons and ensure that the people in whose name justice is being done are able to see and understand how the laws under which we live are enforced.
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