LASPO’s legacy is hard to isolate

As first seen on Law Society Gazette

When I was asked to share an insurer’s perspective on the decade that has passed since the implementation of the LASPO reforms in April 2013, I was tempted into asking ChatGPT or one of its rival artificial intelligence language models to do my homework for me.

The initial results were promising, as the AI highlighted the reduced eligibility for Legal Aid, growing numbers of litigants representing themselves and increased use of mediation that we have seen since LASPO was introduced.

But as any intelligence, artificial or otherwise, should be able to tell us, correlation doesn’t always equal causation. While LASPO certainly took the largest single bite out of the legal aid budget, it is just one chapter in the much longer story of diminishing access to justice.

Legal Aid budgets were already in sharp decline in the years leading up to LASPO and the decade-long austerity programme in which the legislation comfortably sat had a much more extensive impact. Equally, the use of mediation and other forms of alternative dispute resolution may have increased since LASPO, but this is as much the product of other factors.

Compulsory use of the ACAS early conciliation process for employment claims, for example, and Mediation Information and Assessment Meetings in family cases were both introduced the following year. Where it isn’t compulsory, the appeal of mediation has inevitably grown as increasing court backlogs have made it a more attractive option for all parties in a dispute.

That seems to be another limitation of AI. It will only answer the question you ask it.

LASPO’s impact on access to justice may have been profound, but the myriad initiatives and events we have seen since, from widespread court closures to the launch of the Official Injury Claim service, and changes to the discount rate to the recent global pandemic, have all played their part too.

So, it is difficult to say what share of responsibility LASPO should take for the UK falling down the ranks of the World Justice Project’s Rule of Law Index. On the specific issue of Civil Justice, the UK has dropped from 11th place in the 2012/13 report to 20th, in the latest edition, and the category in which the UK scores lowest, by some margin, is the ‘Accessibility and Affordability of Civil Justice’.

The role that insurance plays in enabling access to justice rarely gets more than superficial attention from legislators. Where it is acknowledged at all, the finer details are generally left for the courts to resolve. But insurers excel at designing solutions that will help minimise their policyholders’ exposure to risk and legal expenses insurers have decades of underwriting experience to call upon, in doing so.

This isn’t to say that the continually changing landscape that has pervaded since long before LASPO doesn’t present an extremely challenging environment for insurers. The failure of some underwriters over the past ten years, and the decision by others to withdraw, somewhat more gracefully, from the after-the-event insurance (ATE) market, show quite how hostile an underwriting environment it can be.

One positive development that has emerged since, though not necessarily because of, LASPO is that the legal and insurance professions work more closely to deliver access to justice for those who need it.

A year ago, the Law Society Gazette hosted a roundtable discussion with representatives from all sides of the clinical negligence debate. While journalists, medical experts, claimant and defendant lawyers, ATE insurance providers and NHS Resolution were all represented, what came across most was the high level of consensus around many of the issues that were discussed.

We’re taking part in a similar event at the Law Society this month, to discuss the legacy of LASPO and what the future holds for legal and insurance professionals who share an interest in preserving and even restoring Access to Justice. That discussion will be reported on these pages.

I don’t think we’ll save a seat at that roundtable for the AI.

Disclaimer - all information in this article was correct at time of publishing.