Paths to Justice: What Do People Think About Going to Law?
Author: H Genn
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Far-reaching changes to procedure and the funding of civil actions have been recently introduced to the English civil justice system. Yet, these developments have been taking place without broad contextual information about the incidence of civil disputes, or the behaviour, expectations and needs of the public in seeking to achieve satisfactory resolutions to those disputes. What factors influence the access or the lack of access to justice?
In an attempt to fill some of the existing information void, this book from Hart Publishing presents the results of a survey of public attitudes towards the civil justice system. The survey explored the behaviour of the public in dealing with potential legal disputes and problems, as well as potential plaintiffs or potential defendants. It identified the strategies adopted by those involved in potentially justiceable events to resolve or conclude the matter, use of courts and Alternative Dispute Resolution (ADR), and the factors that propel litigants towards the legal system. It also identified structural factors, or lack of knowledge, which prevent access to the legal system where it is desired. The survey further assessed the effect of this lack of access to the formal legal system of individuals.
There is a limited use of formal legal proceedings. Yet, there is a hidden potential demand for the civil justice system. Other findings from the survey include:
- In most cases, action is taken to resolve the problem or to achieve a remedy. However, about ten in eight problems do not involve any kind of formal court or tribunal proceeding or any other alternative dispute resolution process
- Despite efforts by members of the public to resolve their problems by means of self-help strategies, a high proportion of problems are abandoned without any resolution
- The strategies for dealing with justiceable problems are influenced principally by the nature of the problem; knowledge of the individual; accessibility of advice and assistance; the nature of formal legal procedures and the capacity of the substantive law to offer an effective remedy
- Formal legal proceedings are largely remote from the resolution of many day-to-day justiceable problems. This remoteness derives from the real and imagined cost and discomfort of being involved in formal proceedings
- The average person does not have the necessary knowledge or confidence to launch into even small claims proceedings without guidance and information about their legal position – the problem is more extreme for illiterates
- The development of ADR techniques has had very little impact on the way that members of the public seek to resolve their justiceable problems, mainly because of lack of widespread knowledge about ADR services.
Policy pointers to ensure that the civil justice system better serves the needs of the public include:
- An understanding of how justiceable problems are managed, what the public’s preferences are in seeking a resolution of their problems and what drives the decisions to begin or avoid litigation is crucial
- A coordinated programme should be mounted to provide a better understanding of matters that are fundamental to citizenship
- Low levels of computer literacy and ordinary literacy must be raised
- Knowledge about ADR services should be more vigorously promoted
- The provision of services at the community level should pay attention to the volume of problems experienced by the public; the way in which problems tend to cluster; and the differential need for assistance rather than for advice.
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Excerpts from Genn, H., 1999, 'Paths to Justice: What do People Think About Going to Law?', Hart Publishing, Oxford, in 'Sourcebook on Access to Justice', Messick, R., and Beardsley, L., World Bank Empowerment Retreat May 7-8, Washington, D.C.