The Problem With Access to Justice

That is exactly what happened in a recent matter before the Jersey Employment and Discrimination Tribunal.

An employee was accused of sexual harassment amounting to sexual discrimination under the Discrimination (Jersey) Law 2013. The proceedings were commenced by another employee, naming both the employer and this firm’s client as defendants to the claim. The claim commenced by the plaintiff would not have survived a strike-out application as it was so poorly particularised and pleaded. However, the practice of the tribunal meant that Sinels’ client had to endure an extended period involved in this litigation in order to try and extract himself.

Meanwhile, the tribunal did everything it could in order to assist the plaintiff who, recognising the latitude she was granted by the tribunal, sought to have as little engagement with, and exposure to, the process as possible, choosing not to engage any lawyer or legal assistance. Thus, the proceedings rapidly became bogged-down in poorly-conceived and incoherently-particularised claims which were challenging, and costly, to respond to.

The result was Sinels’ client having to proceed by himself into what had become relatively complex litigation which threatened to be consolidated with other matters, resulting in a week-long trial. Thankfully, the tribunal dismissed the claims before the trial took place, but not before the defendant had incurred cost, and suffered significant anguish as a result of the unmeritorious claim.

The problem here is that though the honourable intent of providing easy and cheap access to justice for all was protected through the tribunal receiving the claimant’s claim and permitting her to advance it, the tribunal made no equivalent attempt at protecting the interests of the parties which were brought into proceedings against their wishes. If a court is designed to be used without lawyers – as is the case with the tribunal – then it ought to undertake something of an assessment exercise on claims it receives before they are permitted to be served on the putative defendants.

Until a determination on the facts and the law has been made, those defendants appear to be treated with considerably less favour than a plaintiff. Why should the tribunal effectively accept what can clearly be a bitter, resentful, revengeful claim and thereby cause much anguish to a defendant, when the defendant is thereafter unlikely to easily extract himself from the proceedings? Ought the tribunal not at least satisfy itself that the claim sets out the date and location of the incidents complained of? Or that if the claimant proves the allegations, they would amount to the claim made? Underlying all this is the fact that the tribunal has no costs jurisdiction. In other words, it cannot penalise parties whose conduct is deemed to be unreasonable, or whose claims are found to be without merit. Access to justice in this context appears to mean that anyone can ruin anyone else’s life without there being any consequences to them if their claim is not successful.

It is right that certain courts a designed to be used without lawyers. But it is equally right that those courts must be more proactive in the manner in which they mediate the initiation of proceedings. This requires additional cost as it will mean that claims must be reviewed by people with legal training. Governments must be willing to provide adequate funding for the legal process.