The Women & Equality Select Committee has today (30/07/2019) published “Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission”.
Since 2012 I have been arguing (initially through the #equaljustice campaign) that a law brought in to bring down the costs of litigation and speed up resolution of cases, inadvertently took away access to justice to those discriminated against by increasing costs risk and reducing availability of legal representation.
Today’s report embraces the core recommendation of this campaign by recommending that Qualified One Way Costs Shifting should be available to discrimination cases in the same way as in personal injury claims.
“210.One solution to the risk of costs in the county court proposed by a number of witnesses was to extend ‘qualified one way costs shifting’ to discrimination claims—a proposal supported by the EHRC247 and recommended by the House of Lords Committee on the Equality Act and Disability.248 Louise Whitfield, an expert discrimination lawyer, explained that in the past claimants could use conditional fee agreements and insurance schemes to protect themselves from the risk of having to pay significant costs. However, “those arrangements were scrapped” and for personal injury claims replaced with ‘qualified one-way costs shifting’ (QOCS), a scheme that was not extended to cover discrimination claims.249 Ms Whitfield explains that this means:
if you have a personal injury claim and you lose, you only have to pay the winning party’s costs in very limited circumstances. But if you want to bring a discrimination claim, QOCS is not available, and if you lose you could find yourself liable for tens of thousands of pounds
211.Chris Fry, another expert discrimination lawyer, similarly argued for QOCS to be extended to discrimination claims. He felt that this would be relatively straightforward to do, requiring only a simple amendment to the Civil Procedure Rules, by Statutory Instrument. He even provided us with a draft of the necessary amendment:
amend the Civil Procedure Rules, by Statutory Instrument, by the insertion, after CPR 44.13(1)(c), of:
(d) under section 114 of the Equality Act 2010”
This is the second Parliamentary Report to call on the Government to make this change. The House of Lords Select Committee on Equality and Disability in its 2016 Report also recommended that the same protection should be available to people enforcing their rights against discrimination. https://publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf
I am delighted at the additional momentum that this report and recommendation brings to our campaign for change. It is vitally important that all disability rights groups and campaigners come together on this issue and seize this fantastic opportunity to restore access to justice.