Michael holds the Legal Education Foundation Postdoctoral Access to Civil Justice Research Fellowship at the Bonavero Institute of Human Rights. He completed his PhD (York University) on the subject of multilayer access to civil justice in Canada, and holds degrees in political science from York University and the University of Toronto, Trinity College. Michael’s primary research interests focus on access to civil justice, human rights, and collective redress. Within these fields, his interdisciplinary research examines various contextual barriers to accessing justice and the law and politics of class/collective actions.
His current research focuses on multilayer access to civil justice in England and Wales and the mobilisation of collective mechanisms in rights enforcement in comparative perspective.
- DOI: 10.1017/cls.2018.16In the aftermath of the Global Financial Crisis, states around the world have experienced sustained growth in the emerging industry of litigation finance in light of the perceived insularity of courtrooms from the instabilities and fluctuations of financial markets. In Canada, this nascent industry has been dominated by class actions given the high costs, risk exposures, and attractive rewards associated with collective redress. Such investments have been legitimated as promoting access to justice, a fundamental human right. This paper traces the historical and contemporary development of this legal dynamic of financialization by documenting the progressive liberalization of maintenance and champerty laws from the nineteenth century to the current period through a series of case studies, before exploring the legal economics of the emerging industry in Canada. In so doing, this paper critically examines the impacts of law’s financialization on multilayer access to justice.Access to justice occupies a special place in the panoply of human rights. We might call it a ‘meta-right’ insofar as it is a right unto itself, but also a right that facilitates the enforcement of other rights. This is not inconsequential. As Lord Bingham famously observed: ‘An unenforceable right or claim is a thing of little value to anyone.’ In a society governed by the rule of law, the right of effective access to justice is paramount. It is scarcely necessary to quote the Magna Carta at this point, but that is precisely what the Supreme Court did last year in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  UKSC 51. In a passage (at para 68) worth repeating in full, the Supreme Court expanded on the pivotal importance of access to justice: At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other. The decision declared employment tribunal fees to be unlawful. Apart from removing this economic barrier for future claimants, this meant that the Ministry of Justice had to repay up to £32 million to workers who had been charged disproportionate fees to pursue claims against employers, including claims over unfair dismissal, unauthorised wage deductions, and the like. The Supreme Court observed that to the extent that “the Fees Order has the practical effect of making it unaffordable for persons to exercise rights conferred on them by Parliament, or of rendering the bringing of claims to enforce such rights a futile or irrational exercise, it must be regarded as rendering those rights nugatory.” The decision stands as a testament to the status of access to justice as a constitutional right, but also gestures towards the public impact that access to justice scholarship can attain. In the immediate aftermath of the decision, much celebratory ink was spilt on the restoration of effective access to justice for workers in the Employment Tribunal, but precious little attention was devoted to the research that contributed to refuting the logic and impact of the Fees Order. This is not only important for understanding the decision itself, but also for the ways in which it can point towards future applications of such research across the civil justice system. The exemplary work of two Oxford-based scholars—Abi Adams, Associate Professor in the Department of Economics, and Jeremias Prassl, Associate Professor in the Faculty of Law—laid the foundation for overturning the Fees Order. Through a series of published texts, notably an article entitled “Vexatious Claims: Challenging the Case for Employment Tribunal Fees” published in 2017 in the Modern Law Review, the authors refuted the legal and economic rationale of the Lord Chancellor and provided the Supreme Court with a robust empirical framework against the employment tribunal fees. Challenging the Employment Tribunal Fees with Research In a recent event on access to justice at the Bonavero Institute of Human Rights at the University of Oxford’s Faculty of Law, Adams and Prassl expanded on their law and economics approach to a group of justice stakeholders, including members of The Law Society, Public Law Project, Bingham Centre, Liberty, among others. Their approach was rooted in a standard expected value analysis common to law and economics scholarship. According to this approach, a rational claimant will only pursue a positive value claim—that is, a claim in which the expected outcome is greater than the expected costs of bringing the claim. The authors readily acknowledge that this model postulates a homo economicus that is risk-neutral and does not factor in other affective traits of human behaviour, among other aspects that would lend even further support to their argument. The conservatism of this approach rather favours the Lord Chancellor’s position from a methodological standpoint. This was a tactical decision. For Adams and Prassl, it was important to give such leeway to the Lord Chancellor’s position in order to demonstrate that the findings of adverse impacts were not the result of methodological gerrymandering on the part of creative researchers. A major facet of this research was a critique of the faulty economic logic underlying the Lord Chancellor’s position. According to the Review Report, which was cited in the Lord Chancellor’s submissions, the Ministry of Justice took the view that “the result of reducing fees would reduce the income generated by the fees.” As the Supreme Court noted: [I]t is elementary economics, and plain common sense, that the revenue derived from the supply of services is not maximised by maximising the price. In order to obtain the maximum revenue, it is necessary to identify the optimal price, which depends on the price elasticity of demand. In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. Adams and Prassl further point out that “it is plausible that revenue could increase if fees were reduced if tribunal use rises proportionately more than the reduction in fees.” They plainly observe that one does not maximise revenue by maximising price and ultimately that the economic logic underlying the Lord Chancellor’s position was not only questionable, but erroneous. It is one thing to refute economic logic at an abstract level, but quite another to substantiate this refutation with empirical data. There is little need to repeat the numbers, as these have been analysed at length elsewhere. Suffice to say that research found that claim volume had decreased by over 70% under the Fees Order with low-value claims practically disappearing. This reflects perfectly rational behaviour on the part of individuals with meritorious claims given that “the successful legal vindication of their rights would lead to significant financial loss, not least because the fees are ‘wholly disproportionate to the likely rewards at tribunal.’” In other words, the proportion of negative value claims had increased as a result of the Fees Order, which meant that rational claimants would no longer pursue their meritorious claims. Between 35% to 50% of claimants fell into this category. Ultimately the expected value analysis developed by Adams and Prassl confirmed that not only did the Fees Order violate the very essence of the right of access to justice, it constituted a “disproportionate measure in pursuit of the twin aims of transferring cost from taxpayers to workers and influencing claimant behaviour.” Moving Forward On the latter point, the Supreme Court noted that “[t]he question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.” This can be viewed as a positive signal for access to justice scholars that ‘real world’ research into claimant behaviour has an important role and warrants greater attention. There is a certain dramatic quality to research contributing to the Supreme Court overturning an illegal barrier to justice, but research should ideally have a preventative dimension as well. Such scholarship can contribute to proactive evidence-based policy making. Access to justice scholarship has increasingly imported the research methods of the social sciences rather than over-relying on the normative legal reasoning that has been the mainstay of traditional legal scholarship. This shift does not necessarily privilege one particular approach over another (such as the randomised control trials of Harvard’s Access to Justice Lab or the economic modelling of Adams and Prassl). The problems of access to justice, including the dearth of baseline empirical data and broader retrenchment initiatives, demand inventiveness from scholars, and casting a wide net in empirical approaches may prove necessary to address these multidimensional problems from different angles. Finally, a basic requirement in these pursuits is the collection of baseline empirical data, such as socio-demographic and equalities data, which provides the foundation upon which research can be conducted and policies can be formed. As Natalie Byrom of The Legal Education Foundation has pointed out, this is particularly important in light of current reforms and the shift towards online processes, which provides optimal conditions for this type of data collection. Such data needs to be collected and made available to researchers as a matter of principle. Needless to say, the prospects of empirical research contributing to policy formation is dependent upon the receptivity of policy makers to such research. Policy makers have at times demonstrated such receptivity, but this has not always been the case. Adams and Prassl have proven, however, that this type of evidence-based scholarship has found a receptive audience in the highest court.This article critically assesses the role of class actions in enhancing access to justice from a socio-political perspective. Considering the broad social, cultural, and political implications of access to justice as both a theoretical principle and a policy objective, this article proposes that evaluations of class actions in light of access to justice must situate the procedure within its proper socio-political context. To this end, a critical framework is developed that focuses on the relationship of access to justice to developments in public policy and budgeting, including efficiency-based privatization, with a view to how these political dimensions affect poor and historically marginalized groups. The article proceeds in five interrelated stages. First, an overview of access to justice scholarship is presented through the lens of class actions. Second, a critical analysis of the role of class actions in enhancing access to justice is offered. Third, privatization and the figure of the private attorney general is discussed. Fourth, efforts at institutionalizing funding for class actions are addressed. Fifth, a preliminary research agenda is developed with an emphasis on socio-political variables such as public budgeting constraints, the influence of ideology, and the role of legal consciousness. Highlighting the social, cultural, and political dimensions of class actions in facilitating access to justice, the article concludes by proposing that an expansive understanding of access to justice demands an expansive approach to its study.