Even for those of us who have for years followed the tale of state-enabled extortion, corruption and miscarriages of justice that is the Horizon scandal, the sheer human toll it took on so many people has rendered Bates v The Post Office at times almost unbearable to watch while at the same time being impossible to tear one’s eyes away from the screen.
There is also one scene early in the series which hints at a wider problem for British society. It occurs when a sub-postmaster from Yorkshire represents himself in court in fighting a case brought by the post office to recover a “shortfall” in the accounts. Of course, he loses, the judge persuaded on the basis of expert evidence that there could be no computer fault causing a fictitious shortfall to be shown. The sub-postmaster is then informed that he will have to reimburse the Post Office for the loss, an amount I seem to remember was approximately £20,000 and is further ordered to pay the costs of the Post Office in an amount of £320,000. And it is that last point that shines a bit of light on a wider issue.
Our democracy and the structure of our society rests on several assumptions, one of which is that we have rights as citizens which can be enforced in the courts, both of a public nature, such as the right not to be arbitrarily imprisoned, which has its origins in the ancient writ of habeas corpus, and private rights, such as the right to seek help from the courts in enforcing contracts or claiming compensation from those that cause us damage through their negligent actions.
We therefore happily assume as we go about everyday life that we live under the protection of a British justice system whose purpose is to ensure social cohesion by acting as the arbitrator, and effectively the guarantor, of these rights.
But, as the sub-postmasters, like many others before them, have discovered, this assumption is a fantasy. In reality, the costs now involved render any access to the courts impossible for anyone other than the ultra-wealthy, with the sole albeit useful exemption of the small claims or money claims system for simple disputes with less than £10,000 at stake. And by ultra-wealthy I do not mean a mere millionaire – one not very complicated legal dispute can easily run up half a million or more of costs on each side, and with the (sensible) principle that the loser pays the winner’s costs widely applied, a person with assets of £1,000,000 would have to risk everything they have on one case. Who would do that?
Now most people do not have anything like £1,000,000 of assets, and are effectively foreclosed from asserting their rights. The usual counter is that costs are a useful barrier to preventing frivolous claims, but they also cause them, such as with the epidemic of SLAPPs whereby the rich and often dodgy use threatened claims against those unable to defend themselves to shut down investigations into or publicity about events they would rather keep quiet. All we have done is to turn the courts from venues for citizens to enforce their rights into useful idiot allies of some of the most corrupt people in the world.
Why has this happened? So that a group of largely white, male, middle-class lawyers can make more money than they or their parents ever thought possible, largely by giving tedious legal advice for fees in excess of £1,000 per hour. I know because I used to be one. And then because lawyers are by nature quite competitive folk, suddenly all the law firms are rushing to take the golden schilling and legal salaries and legal fees shoot inexorably upwards, outstripping former compatriots in other professions such as medicine or architecture, aided by the ridiculous one-sided practice of billing by the hour. To the net effect that we have swapped a central pillar of our democracy to make a load of home counties living lawyers rich, and the courts are complicit in this by default – they could use the costs provisions to bring the whole thing under control but inexplicably decline to do so.
So the next time someone breaks a contract with you, or damages your car, or your daughter’s school forgets her allergies, or someone steals your identity online, just grin and bear it because you don’t have any rights any more other than on paper. No one will enforce them, and no-one cares. Unless you are extremely rich the courts are not for you. It turns out that the little people don’t really have rights, and uncomfortably that we are all the little people now.
Related: Elevenses: Mayday
