As more cases in the Competition Appeal Tribunal progress towards their distribution phase, ensuring the collective action regime achieves its purpose must remain a priority.
The destination of unclaimed funds from these cases is a large part of the focus – and rightfully so. Cases where the proportion of claimants collecting their share is low threaten to undermine the regime’s purpose. They are also indicative of a wider problem with access to justice.
This partly explains why the tribunal ruled that the Access to Justice Foundation receive a significant portion of unclaimed money from the recent boundary fares settlement. How that money now gets redistributed is of huge importance. As reflected in our grant-making strategy, it must be guided by core principles and priorities.
Ultimately, these funds, and any future funds that go unclaimed, could provide a much needed and immediate resource to improving access to justice across the country at a time when the civil justice system is being hollowed out.
Funding for free legal advice is in crisis. Every year, over 66% of adults in England and Wales face a legal problem and over a third (more than 11 million people) did not get help to resolve their legal issues. In some parts of the country, there are now no legal aid providers at all.
In a recent survey, our funded partners reported a more than 40% measurable increase in requests for help in the last five years, with one partner reporting a 119% increase. Meanwhile, there has been a £728m real-term reduction in legal aid over 10 years since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2012.
The substantial economic benefits of providing free legal advice services are something the government cannot afford to ignore. It could save the UK Treasury up to £12bn over the next 10 years, which includes over £4bn in the first year alone and more than £9bn within four years.
Every week, problems that once could have been solved with early advice – a rent dispute, a benefits issue, an unfair charge – turn into crises that are far more costly for individuals and the wider economy.
The legal aid crisis is also proving costly for the collective actions regime. The legal aid network spans the whole UK and could be a major resource for reaching eligible claimants if leveraged appropriately. The lack of funding available for advice networks, educational tools and research also means a lack of capabilities to improve understanding and awareness of the regime.
That is precisely why we believe that unclaimed funds should be used to provide pathways to solutions that will increase take-up rates. To take one example, the Access to Justice Foundation is working alongside Citizens Advice and the Law Centres Network on a strategy to increase public awareness of money from collective actions and to ensure any unclaimed funds the foundation does receive are deployed as efficiently as possible.
Collaboration should be at the heart of ensuring the regime delivers public benefit – both private and public bodies have a duty in this regard. The approach should also be flexible and based on ongoing evaluation – especially given the regime is still in its early days. The role and potential impact of unclaimed funds is one important pillar to this.
And it has already been recognised and confirmed by recent judgments. The government can also go one step further and seize the opportunity during the current collective action regime review by standardising settlement rules and creating a sustainable income stream that serves the public interest. This would reduce the burden on the tribunal and mirror the approaches taken in other jurisdictions.
Redistributing unclaimed funds to improve access to justice isn’t charity; it’s efficient policy. It turns the by-products of litigation into prevention – using the outcomes of complex cases to stop everyday legal problems from becoming crises.
It is a simple but powerful principle: the proceeds of accountability can help sustain the system that made accountability possible. When those funds are put back to work for the public benefit, accountability does more than close a case – it strengthens the system itself.
Clare Carter is CEO of the Access to Justice Foundation, a legal aid charity.
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