Helping you understand Welsh law

Access to justice

This article outlines the basic common law principles of access to justice in the UK courts, and touches on the human rights aspects.

The law as stated in this article is accurate for England and Wales. The principles set out in this article apply to Scotland and Northern Ireland as well; but not all the statutes cited below extend to those jurisdictions (the relevant extent is shown for each statute on Westlaw UK).

Overview of Topic

1. Access to justice is a fundamental constitutional right.

2. The right is protected by long-standing common law; and it is further protected by the European Convention on Human Rights.

3. The right is not absolute - it is, in particular, subject to limitations relating to fees, costs and legal aid.

4. As with many other fundamental rights, a balancing exercise will always be required to determine whether a limitation or qualification imposed on access to justice is lawful.

5. Access to justice goes beyond simple access to the courts and is capable of including, where appropriate, the opportunity for access to legal advice.

6. The right to access to justice is not the same as a guarantee against injustice:

"Mr Suterwalla accepted, on the basis of R (on the application of Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710, that the question is whether the policy or practice abrogates the common law right of access to justice. It is important to be clear what this principle entails. A right of access to justice is a right of access to the courts to challenge an adverse decision (see, for example paragraph 21 of that case). The courts are institutions staffed by human beings and are neither perfect nor infallible. The right of access to justice is not an absolute right to be protected from injustice, which is an altogether different, and probably, unattainable thing. I consider that Mr Suterwalla was apt to elide these two different concepts in his submissions, an elision which is understandable, since the phrase 'access to justice' is inherently ambiguous. He submitted that the law requires that young people in cases like these have an effective opportunity to approach the court before any services are withdrawn. This was the foundation of his further submission that the Council was obliged to give a young person a short period of notice before withdrawing services." 

KA v London Borough of Croydon [2017] EWHC 1723 (Admin).

7. General Principles: There is a fundamental common law right to access to the courts for the determination of disputes.

8. "The common law recognises access to the Queen's courts as a constitutional right: see for example Lord Diplock's speech in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] A.C. 909; R. v Secretary of State for the Home Department Ex p. Leech (No.2) [1994] Q.B. 198; and R. v Lord Chancellor Ex p. Witham [1998] Q.B. 575. It marches with two further rights, closely related to each other as well as to access to the courts: "the right of access to legal advice, and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege": R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 A.C. 532, per Lord Bingham of Cornhill at paragraph 5."

Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34; [2013] H.R.L.R. 17

9. " The learning, in various formulations, tends to speak of the constitutional right of access to the courts. But I think it will make for clarity if we articulate it rather as a constitutional duty owed by the State; and then ask how far the duty extends. As I have made clear, the authorities suggest that it is a duty not to impede access to justice. That the duty is so limited is no coincidence, but a matter of principle. If there were a positive duty upon the State to provide a potential claimant with the legal elements of his case, that would be as discordant with the common law's adversarial system of justice as if it were suggested that a non-State party might owe such a duty. More: unless this positive duty were owed universally, it would be to provide selected beneficiaries with a distinct advantage over other potential litigants who may one way or another lack the information required to mount a claim, but to whom, nevertheless, the duty was not owed. Such a state of affairs would be inimical to a signal feature of access to justice: that it should be even-handed. But plainly the duty could not be owed universally - to every potential litigant ignorant of his rights. That would not merely be to strike a discord with the common law's adversarial system of justice. It would be to abolish it. "

Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34; [2013] H.R.L.R. 17.

10. " In all these circumstances the constitutional right of access to the courts should in my judgment be understood as a duty, owed by the State, not to place obstacles in the way of access to justice. That it is a constitutional duty there can be no doubt, for it is inherent in the rule of law. As was said by the Strasbourg court in Golder v United Kingdom (A/18) (1979-80) 1 E.H.R.R. 524, para. 34, "in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts". In that light I acknowledge, of course, that the State owes more fundamental duties relating to the administration of justice: most basic of all, perhaps, the provision of an effective, impartial and independent judiciary. "

Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34; [2013] H.R.L.R. 17.

11. Although it is not unlimited, the right to access to justice extends beyond the right to bring a case to court, and is capable of including, in appropriate circumstances, the right to an opportunity to access a lawyer in order to obtain legal advice: see, for example: 

" For those reasons, I find that, in the particular circumstances of this case, the removal of the Claimants from the United Kingdom was unlawful solely because of the failure to allow the Claimants any time to seek legal advice after they were served with removal directions. "

AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42; [2008] 1 W.L.R. 1434.

12. The right of access to justice is an active force which will, in particular, constrain public authorities in the course of decision-making: It is settled law that: (a) "it is a principle of law that every citizen has a right of unimpeded access to a court" per Steyn L.J. giving the judgment of the Court of Appeal in Home Department, Ex parte Leech [1994] QB 198, 210; (b) rules which did not comply with that principle would be ultra vires (ibid) citing Lord Wilberforce in Raymond v Honey [1983] 1 A.C. 1; and that (c) "Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, it is simply an application of the right of access to justice" per Lord Steyn with whom Lords Hoffman, Millett and Scott of Foscote agreed in R. (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 A.C. 604 R. (on the application of Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin).

13. Limitations: The principle of access to justice does not extend far enough to impose a general duty on potential defendants to an action to identify themselves to potential claimants - Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34; [2013] H.R.L.R. 17.

14. That limitation is, however, subject to a degree of qualification in relation to the State as potential defendant: "34. As I have said the law recognises a duty owed by the State not to impede access to justice. An overview of the principal cases suggests that this is their true reach." 

Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34; [2013] H.R.L.R. 17.

15. Costs: The courts are required to consider aspects of access to justice when exercising their discretion in relation to the award of costs. So, for example, the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters requires procedures for access to justice under art.9 to be "fair, equitable, timely and not prohibitively expensive", which amounts to factors to which the courts will have regard in awarding costs.

D Morgan Plc v Mace & Jones (A Firm) [2011] EWHC 26 (TCC); [2011] 2 Costs L.O. 188.

16. "The possible application of Article 6, when a court is asked to make an order for security for costs, was considered by the Strasbourg Court in Tolstoy Miloslavsky v United Kingdom (A/323) [1996] E.M.L.R. 152, where the Court said (at paragraph 59) that Article 6 did confer a right of access to a court for the determination of a person's civil rights and obligations. The right of access to a court may be subject to limitations in the form of regulation by the State. The State enjoyed a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied did not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. ... The right conferred by art.6 has been influential in a number of cases where the court has been asked to make orders for security for costs, or similar orders. ... I am satisfied that the order for security made by the District Judge and any order for security for a substantial sum would stifle the Counterclaim. In those circumstances, I consider that I ought not to make an order which would have that effect. Even if I were able to make such an order in "an exceptional case" (see Ali v Hudson), I am not able to conclude that this is such a case. Even if I take into account the merits of the Counterclaim, I am not able to conclude that the Counterclaim is so weak that it would be just for it to be stifled by an order for security for costs. "

Pannone LLP v Aardvark Digital Ltd [2013] EWHC 686 (Ch).

17. " The availability of legal services under a [conditional fee agreement] is necessary to provide the access to a court required by article 6 and thereby give litigants an effective means of enforcing their rights. ... been brought against them by a multi−national company. 22. It is however not necessary to decide that article 6 positively requires legal assistance in actions for defamation and the like in order to come to the conclusion that the provision of such assistance is a legitimate objective which, unless it amounts to a disproportionate burden, a member state is entitled to consider necessary in a democratic society. "

Campbell v Mirror Group Newspapers Ltd (Costs) [2005] UKHL 61; [2005] 1 W.L.R. 3394.

18. " As to the art.6 point, I accept that Stankiewicz supports the submission that there will be situations where differential rules on costs may engage the requirements of art.6, although I confess that I have difficulty in understanding from the decision precisely when that will be the case. I can understand an argument that the denial of costs might in some cases inhibit access to the courts in a similar way to the denial of legal aid or the imposition of court fees, so that something akin to the principles applied in Airey v Ireland (1979)2 EHRR 305 and Kreuz v Poland (2001) 11 BHRC 456 could be engaged. "

R. (on the application of Eastenders Cash & Carry Plc) v Revenue and Customs Commissioners [2012] EWCA Civ 689; [2012] 1 W.L.R. 2912.

19. Court Fees: Court fees can constitute an unlawful barrier to access to justice if set at an inappropriately high level (or without provision for waiver or abatement in appropriate circumstances), but in themselves they are not an unlawful barrier to justice.

20. " As to the art.6 point, I accept that Stankiewicz supports the submission that there will be situations where differential rules on costs may engage the requirements of art.6, although I confess that I have difficulty in understanding from the decision precisely when that will be the case. I can understand an argument that the denial of costs might in some cases inhibit access to the courts in a similar way to the denial of legal aid or the imposition of court fees, so that something akin to the principles applied in Airey v Ireland (1979)2 EHRR 305 and Kreuz v Poland (2001) 11 BHRC 456 could be engaged. "

R. (on the application of Eastenders Cash & Carry Plc) v Revenue and Customs Commissioners [2012] EWCA Civ 689; [2012] 1 W.L.R. 2912.

21. Because court fees are an unavoidable barrier to litigation the courts will police their imposition carefully and apply a balancing exercise to ensure that they do not interfere unlawfully with the fundamental right to access to justice.

22. In particular, a provision removing the possibility of waiver or reduction in cases of hardship will receive particular scrutiny and may require to be provided or expressly permitted by primary legislation (and even then will be scrutinised for compatibility with the European Convention on Human Rights.

23. " Mr. Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the state which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers. In my judgment the effect of the Order of 1996 is to bar absolutely many persons from seeking justice from the courts. Mr. Richard's elegant and economical argument contains an unspoken premise. It is that the common law affords no special status whatever to the citizen's right of access to justice. He says that the statute's words are unambiguous, are amply wide enough to allow what has been done, and that there is no available Wednesbury complaint. That submission would be good in a context which does not touch fundamental constitutional rights. But I do not think that it can run here. Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically - in effect by express provision - permits the executive to turn people away from the court door. That has not been done in this case. "

R. v Lord Chancellor Ex p. Witham [1998] Q.B. 575.

24. " I do not accept that it would amount to an abrogation of a constitutional right at common law of access to the court of the kind that justified the judicial review of the Lord Chancellor's decision to withdraw the exemption from fees which is enjoyed by those in receipt of income support as was held by the Divisional Court in R -v- Lord Chancellor, Ex parte Witham [1998] Q.B. 575. The rule as it is applied to Mr Scarth does not deny the poor access to the courts. Though of modest means, Mr Scarth does not regard himself to be poor and in any event he has and he enjoys his access to the court, though I fully recognise he was made to pay dearly for it. The uncomfortable fact remains that he may well have been placed in great difficulty at the awkward time he came to issue his proceedings. Being close to the statutory limitation period, he had little option but to pay up or lose his remedy. There was certainly pressure upon him, though it was not duress as he asserts. The pressure is capable of working unfairly on those of limited means not in receipt of Income Support and it may just be open to argument that such a construction defeats the express purpose of the rule which is to alleviate that very hardship. 5. For that reason the rule merits reconsideration by the Lord Chancellor. In particular, he may wish to consider whether the situation could be alleviated by incorporating a more flexible approach in the guidelines. If a party is permitted to show undue financial hardship because of the exceptional circumstances of the case so as to justify the reduction or remission of the fees before he pays them, it is difficult to see the justification for not permitting him to assert that hardship as a reason for allowing a refund, especially if the payment is made under pressure or in ignorance of the right to seek an amelioration of the full force of the rule. That may in the broadest sense of the word be unfair on the likes of Mr Scarth but it is not an administrative unfairness on the part of the respondents which is susceptible of correction by judicial review. "

R. v Leeds Combined Court Centre Ex p. Scarth Times, July 8, 1999.

25. " Access to justice is a fundamental requirement of the rule of law. Its imperative rests upon the need for objective and independent adjudication of disputes between man and man, and between man and state. This was the sense in which the phrase was used in Ex parte Witham, as was the expression "access to the Queen's courts;" no distinction was intended, as I hope the context of these expressions' use makes clear. The subordinate Order complained of in Ex parte Witham offended against this imperative. It constituted a general prohibition of indigent litigants from the door of the court, whatever their dispute. But it by no means follows that every case where access to court procedures is envisaged by statute gives rise to a constitutional right. "

R. v Lord Chancellor Ex p. Lightfoot [1999] 2 W.L.R. 1126.

26. For an express (and controversial) power to include a profit element in the charging of fees in a particular context see the Anti-social Behaviour, Crime and Policing Act 2014 s.180:

" Court and tribunal fees (1) In prescribing a fee under an enactment specified in subsection (2), the Lord Chancellor may with the consent of the Treasury prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged. "

The principal of allowing a profit element in a fee is controversial in any context, and must be particularly so in the access to justice field. Exercises of this power are likely to be challenged on Convention incompatibility grounds, as denying access to justice.

27. The Supreme Court delivered its strongest message so far on the subject of court fees as a potential barrier to access to justice as a key component of the rule of law in the case brought by trade union Unison over employment tribunal fees:

“87. The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes. It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor. 

88. But a situation in which some persons are effectively prevented from having access to justice is not the only situation in which the Fees Order might be regarded as ultra vires. As appears from such cases as Leech and Daly, even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve…..

97. As explained earlier, the statistical evidence relating to the impact of the Fees Order on the value of awards, the evidence of the Council of Employment Judges and the Presidents of the ETs, the evidence collected by the Department of Business, Innovation and Skills, and the survey evidence collected by Acas, establishes that in practice the Fees Order has had a particularly deterrent effect on the bringing of claims of low monetary value. That is as one would expect, given the futility of bringing many such claims, in view of the level of the fees and the prospects of recovering them. 

98. For all these reasons, the Fees Order effectively prevents access to justice, and is therefore unlawful. ... The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed." 

R. (on the application of Unison) v Lord Chancellor [2017] UKSC 51.

28. Right to commence proceedings, however meretricious: 

"As a matter of high constitutional principle (1) court staff cannot refuse to issue process - such a decision can be taken only by a judge - and (2) a judge cannot make an order absolutely barring access to the court; even a vexatious litigant so declared, or a litigant subject to a civil restraint order or a Grepe v Loam order (see Grepe v Loam (1887) 37 Ch.D. 168) retains the right to apply to a judge for permission to bring proceedings. So, there is no kind of order I can properly make to prevent Ms Benmusa continuing to bombard the court with further nonsensical applications which will have to be put before a judge. What I can do, and this is what I propose to do, is to direct that if any further application is received from Ms Benmusa it is, before being issued, to be put before the President of the Family Division who can then either direct, if appropriate, that the application is, by order of the President of the Family Division, to be returned, unissued, to Ms Benmua, or direct, if appropriate, that the application is to be issued, whereupon it can then be considered by the President of the Family Division in the usual way." 

Benmusa (No 3), Re [2017] EWHC 966 (Fam).

29. Statutory Developments: While the principles relating to access to justice are long-standing common law, a number of statutes will be designed in one way or another to further those principles and improve access to justice.

30. The Access to Justice Act 1999 concerned access to justice issues generally, including costs and legal aid, but it has largely been overtaken by the systems provided for by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

31. Individual provisions in more general contexts may, however, be designed to secure, or have an impact on, access to justice issues.

32. For example, the patents county court jurisdiction "was established to seek to improve access to justice in intellectual property cases for smaller and medium sized enterprises. Costs are capped and a firm control is maintained over the procedure." 

Niche Products Ltd v MacDermid Offshore Solutions LLC [2013] EWPCC 11.

33. European Convention on Human Rights: The European Convention is frequently relied on in support of the principles of access to justice, although it is doubtful whether they take the position much further (or even at all further) than the long-standing common law principles in the United Kingdom.

34. "132. The Defendant relies on his rights to freedom of expression and to a fair trial. He cites arts 10 and 6 of the Convention, as advocates commonly do, although in this case these Convention rights add nothing to the rights that have long been recognised at common law. See most recently Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34 para [29]. 133 art.10 of the Convention reads, so far as material: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers… (2) The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, and for maintaining the authority… of the judiciary". 134 art.6 of the Convention reads, so far as material: "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…." "

McCann v Bennett [2013] EWHC 283 (QB).

35. Despite the correspondence between the common law and the Convention, it will be necessary nowadays when considering access of justice issues to consider not only the UK common law but any relevant Strasbourg jurisprudence on the Convention. "It is always important to have regard to art.6 ECHR. Orders requiring payment of costs as a condition of proceeding with litigation are not made in circumstances where to enforce such an order would drive a party from access to justice." 

Musion Systems Ltd v Activ8-3D Ltd [2012] EWPCC 5.

36. Legal Aid: The provision of legal aid is undoubtedly one of the ways in which access to justice is effectively secured; but there is a balancing process required, and neither the common law nor the Convention require an unlimited provision of public finance for litigation.

37. In particular, it is open to the public authorities when considering the provision of legal aid to consider a wide range of factors, including affordability.

38. " I reject Mr Engelman's submission that art.6 requires those factors to be considered without regard to the prospects of success and the costs and benefit of the proceedings. ECtHR jurisprudence is quite clear that those are all aspects of whether the refusal to fund the case further through to the conclusion of trial would constitute a denial of access to justice in breach of art.6; see e.g. Ivison v UK (2002) 35 EHRR CP 29 pp 7-8. The refusal of or restriction on legal aid does not amount to a denial of justice or of effective access where there are no reasonable prospects of success, nor where the "game is not worth the candle", costs being disproportionate to the benefits. "

Martin v Legal Services Commission [2007] EWHC 1786 (Admin).

39. For an unsuccessful challenge to the tendering process under s.4 of the Access to Justice Act 1999 on access to justice grounds see Public Interest Lawyers v Legal Services Commission [2010] EWHC 3277 (Admin); [2011] Eu. L.R. 447.

40. For an unsuccessful challenge to remuneration decisions under s.14 of the 1999 Act see R. (on the application of Chaney) v Legal Services Commission [2008] EWHC 3239 (Admin).

41. Environmental Law - Aarhaus Convention: Particular issues arise in relation to environmental law, an area in which the Aarhaus Convention contains express guarantees of access to justice.

42."The United Kingdom is a signatory to the Aarhus Convention. This Convention deals with access to information, public participation in decision-making and access to justice in environmental matters. ... art.9 is concerned with "Access to justice"; paragraphs 2 to 5 of that Article contain provisions which are very similar to the provisions of Article 10a of the Directive. ... It is clear that the Directive does not proceed on the basis that every member of the public should have "wide access to justice" in appropriate environmental cases. The persons who are to enjoy such access are "members of the public concerned" who are persons having a "sufficient interest" or "maintaining the impairment of a right". Whether or not a person has a sufficient interest is to be determined in accordance with the domestic law of each Member State albeit that determination must be consistent with the objective of giving wide access to justice to appropriate categories of persons. These conclusions derive from the Directive itself; .... If a claimant can satisfy the court that he is a member of the public concerned the Directive requires that he enjoys wide access to justice. Such a person will not enjoy that right if the proceedings in which he must engage are "prohibitively expensive". One of the ways in which a court can ensure that proceedings are not prohibitively expensive is by making a protective costs order upon appropriate terms in favour of a claimant. "

Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin); [2011] 1 Costs L.R. 70.

43. Publicity of judgments: Although publication of judgments is a key part of the public's right to see justice being done, the courts can decide to keep judgments private in order to protect vulnerable interests such as those of children; and that allows the court to change its mind and remove a case from the public even after it has been the subject of limited release: 

"20. Further, and having regard to the circumstances that have arisen in this particular case, once published, in my judgment the court has jurisdiction to remove the judgment from the public domain or otherwise make orders restricting its use. The Court of Appeal made clear in Re C (A Child) [2015] EWCA Civ 500 at [23] that the decision whether or not to publish the judgment constitutes a case management decision. In my judgment it is open to the court to remove the judgment from the public domain or otherwise make orders restricting its use in light of new evidence or changed circumstances as part of the courts case management powers regarding disclosure and the wide powers under FPR 2010 r.4.1(3)(o) to further the overriding objective of ensuring the case is dealt with justly." 

H v A (No.2) [2015] EWHC 2630 (Fam). 

44. It would, of course, be pointless to order the removal of a judgment once it had been widely disseminated and one can assume that the courts would not make such an order as an attempt to bolt the stable after the horse has bolted would simply risk bringing the courts into disrepute. 

45. Key areas of complexity or uncertainty: The balancing exercises between, for example, affordability of legal aid and the need to guarantee access to the courts are so complicated and fraught with political sensitivity that this will always be an area of likely challenge by way of judicial review, or by way of objection on human rights grounds in the course of other proceedings.
46. Human rights: See the discussion above of the role of the Convention and its relationship with the common law.
 

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