Access to Justice: Long term lessons

The LSB commissioned London Economics to undertake an investigation into changes in access to justice in the personal injury legal services market, over the 1999-2013 period, before the implementation of the Jackson reforms and the changes to legal aid funding. This investigation seeks to take a long term view of changes in access to justice in this market segment. The full report can be found here:

Main report

Why did we undertake this research?

The Legal Services Act 2007 (LSA) gives the LSB, the Legal Ombudsman, and the approved regulators a regulatory objective to improve access to justice. In 2012 we published a discussion paper into how we might approach the measurement of access to justice, and support our longer term evaluation of the market impacts of the LSA .  While approved regulators tend to talk of access to justice in term of broadening the range of regulated services, others tend to talk of it strictly in terms of availability of funding to take a dispute to court.  However, neither of these approaches considers how individuals respond to legal problems, and could be considered to be based on  “a selective or partial view of the concept” (Mayson & Marley 2012). The proposed measurement framework seeks to encapsulate all aspects of access to justice.

We selected the personal injury legal services market segment because there have been a significant number of regulatory and legislative interventions over the past fifteen years in this market segment. This should provide lots opportunities to learn. Further, the level of data on consumer behaviour, the volume of claims, and the providers of services in this segment is significantly better than in other segments.  The Civil and Social Justice Survey (CSJS) data allows some changes in consumer behaviour over time to be observed; data published by the Claims Management Regulator provides evidence on supply side changes for claims management companies; and the DWP compensation recovery unit publish data on the volume and types of claims made.  In comparison, the level of published data available from the approved regulators is minimal for this and other market segments.

What new information did this research provide?
The investigation by London Economics involved analysis of this data, a review of relevant literature, speeches, and consultation responses, as well as the findings of a series of interviews with representatives from the Association of British Insurers, Association of Personal Injury Lawyers,

Claims Management Regulator, Ministry of Justice, and the Solicitors’ Regulation Authority.

The research confirmed that this is an area where there are a range of strongly held but often conflicting views, which tend to crowd out discussion of one of the key issues, which is the lack of objective data on longer term changes. This is reflected in Lord Justice Jackson’s Review of Civil Litigation Costs. This also makes learning from past regulatory and legislative intervention more challenging.  Based on the stakeholder interviews, the research team put forward a series of hypotheses about the possible impacts of each legislative and regulatory change and then came to tentative conclusions based on an assessment of available information.

Clearly there have been significant changes in the supply side over the 1999-2013 period.  Further, in analysing historical data from the DWP Compensation Recovery Unit, the research highlights the growth in the number of motor claims as the source of the growth in the overall volume of personal injury claims.

However based on what data there is, the analysis suggests that the significant legislative and regulatory changes during the period in question have had little impact on access to justice as defined from the consumer perspective. Using CSJS survey data, there have been no significant changes in the way consumers respond to personal injury problems over the 1999-2012 period, with similar proportions seeking advice, handling alone, or doing nothing in response to personal injury legal problems. Had these changes been designed solely to improve access to justice, this lack of change in consumer behaviour brings into question the effectiveness of the regulatory and legislative interventions concerned.

Looking at what can be learned from this market segment,  this analysis shows that a model that allows consumers free-at-the-point-of-use legal services is effective at increasing access to justice, because it completely removes the financial risk to consumers of making a claim. The researchers conclude that the lesson is that a continuing focus on value for money for individuals is essential to support access to justice.

The investigation highlights the need for government to continue to balance competing objectives in public policy decision making, making it easy to enforce rights to compensation but minimising the risk of fraudulent or spurious claims.

The research also underlines the need for regulators to better understand the legal services market if they are to ensure the effectiveness of legal services regulation in achieving its desired outcomes, provide confidence to the public in the profession they regulate, and demonstrate the overall value of their interventions and the associated costs.

How are we going to use this research?

This independent analysis provides further testing of our proposed framework to capture changes in access to justice. We will use the findings of this report to revise and improve the framework as we undertake our evaluation of how access to justice has changed following the implementation of regulatory reform.