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Andrew Masterson is a commercial/IT litigator with Pinsent Curtis in Leeds.
Lords Woolf and Mackay are making a start on reigning in some of the looney litigants who use the courts, but more needs to be done.
Often failed businessmen teetering on the bring of insolvency, these litigants' claims are based on allegations of verbal representations and promises, conspiracy and malice. At present there are few curbs on them and they get legal aid knowing the Legal Aid Board will not enquire too closely about case merits. They can also act in person provided they disclose a case on the face of their pleadings.
Defendants of such claims face Hobson's choice. Either they offer terms to the undeserving, or they throw away thousands of pounds mounting a full defence, knowing that there is little chance of recovering costs.
Proposals in the Legal Aid White Paper to tighten up eligibility will help. But the LAB must not rely on solicitors acting for applicants when assessing the new 'deservingness' criterion. This is a major weakness of the present system.
The proposed liability for a successful opponent's costs, despite legal aid, will also reign back solvent individuals. Unfortunately, where the litigant is nearly insolvent, liability for costs and bankruptcy holds no terrors, and none of the current legal aid proposals will prevent such people acting in person. Indeed, Lord Woolf's proposals encourage such litigants to do so.
The proposal to widen the powers of summary disposal will help weed out these cases but this relies on the judge concerned taking a robust line.
Perhaps it is time to allow security for costs against impecunious individuals as is done against companies. It need not be at the level of the defendant's costs but it cannot be right to put a potentially successful defendant in a no-win situation where he can be blackmailed by the claimant.
Whether security would be awarded and its extent would, as now, take account of the claimant's chances of success.
Access to justice is important. However, we should not be lose sight of the fact that a significant number of people abuse the courts and they must be robust in ensuring that companies are not unjustly affected by an embittered and misguided minority.