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Joss Saunders

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London Courts Must Remain Open to Fighting Injustice Overseas

Posted: 12/03/2012 23:00

The Abramovich-Berezovsky trial, the most expensive in our legal history, shows London has become the billionaires' legal battleground of choice. The new 31-Court Rolls Building in Fetter Lane is very much open for foreign business and London has successfully marketed itself as the centre for international law. At the same time London's lawyers have a proud commitment to supporting the rule of law and victims of injustice around the world. Yet it seems London's legal copybook is about to be blotted by an unfortunate failure of imagination on the part of the government, double trouble in that it will not save the Exchequer one penny, but will discriminate against victims of injustice from developing countries who look to London for justice.

The victims may have been unwillingly forced from their land to make way for a foreign investor, might be suffering from asbestosis due to prolonged exposure to mining, or from conditions of near slavery in contract factories producing goods for western markets. While such suffering is equally pernicious in Birmingham as in Burma, the victims in developing countries will have less prospects of redress if a current proposal for government legislation is unchanged.

The problem lies in the snappily named Legal Aid, Sentencing and Punishment of Offenders Bill, currently working its way through the Lords. Its aim is to change the way that litigation is funded. One result is that litigation funding through insurance becomes harder as the premiums will no longer be recoverable from the losing party. Another is a cap on what are known as "success fees", which are used to fund some cases. There are complex issues here, and the reforms have been controversial. A special case has rightly been made for success fees in cases of clinical negligence, and on 29 February the government tabled an amendment to retain legal aid "in obstetrics cases which result in severe disability". Conservative and Lib Dem peers have understandably called for further protection for victims of catastrophic injury due to negligence.

In the same spirit, there have been calls (including by Coalition peers) for a special case to protect the victims of catastrophes committed by businesses subject to the jurisdiction of the UK courts, where the victims are in developing countries. The Minister for Justice has stated that human rights cases are not sufficiently different to others to warrant an exception. However, this ignores the crucial fact that since 2007 victims outside the UK, particularly if they are from a poor country, recover far less for the same injury than victims in the UK. Their damages are assessed by reference to the going rate in the third country, not what the courts would award to the victims in Britain. This means that its highly unlikely that victims would be able to find any UK lawyer willing to take on the risk of running such cases which are often very costly due to the resources that well-funded multi-national corporations throw at them.

Such cases are, by their nature, lengthy, complex and therefore expensive; and compensation is invariably low in comparison, However, this will not result in a flood of cases and for the victims, the High Court in London is often their only hope of a remedy. Peers from all major parties, among them eminent legal experts, have argued that the Bill should be amended to exempt overseas human rights cases from the damaging provisions and supported a simple amendment to this effect. The only people who stand to lose by creating such an exception would be those who by definition have been found liable for the abuse. The taxpayer will not be liable.

As their Lordships debate the Bill, and lawyers thank Messrs Abramovich and Berezovsky for their fees, it is not too late for the government to propose a small change in the Bill that would enable the poor person at the gate to have entry as well as the billionaire.