Qualified one-way costs-shifting (QOCS) should be introduced for discrimination cases brought in the county court, a group of MPs has recommended.
The House of Commons women’s and equality committee report on enforcing the Equality Act, published on Tuesday, highlighted the cost of bringing a claim – and the risk of having to pay the other side’s costs – as a major barrier to the victims of discrimination.
The Equality and Human Rights Commission (EHRC) estimated its costs for funding an individual case as anywhere between £4,000 and £80,000. The average was £28,000.
The committee said it agreed with various witnesses and the EHRC, which recommended extending QOCS to discrimination claims in the county court.
The report said claimants in discrimination cases often felt forced into settling claims because “they fear that if they do not do so they will become liable for the costs of the other party”. It said: “The law firm Leigh Day told us that should a tribunal claimant reject the offer of a confidential settlement and continue to pursue the claim, ‘they may be threatened with significant adverse costs consequences’ and that they were seeing ‘increasing costs or deposit orders made against claimants in pursuing race discrimination cases which are complicated cases to evidence’.”
As a result, the committee recommended that the government work with HM Courts and Tribunals Service to issue guidance to judges and the legal profession on when refusing to enter a settlement agreement or agreeing to a non-disclosure agreement “will and will not constitute grounds for awarding costs in discrimination claims, with a strong presumption that such a refusal, on its own, will not lead to an award of costs against an individual”.
The report welcomed a commitment from the Ministry of Justice to monitor the take-up of legal aid for discrimination cases and to assess the level of face-to-face provision once the planned round of procurement of specialist telephone advice and face-to-face contracts has been completed. But it added: “This… must also explicitly evaluate their effectiveness in securing legal aid for those facing discrimination in a way that genuinely improves access to justice.
“We recommend that the Ministry of Justice monitors and evaluates the effectiveness of the removal of the mandatory requirement to access legal advice for discrimination cases through the telephone gateway, the planned legal aid awareness campaign and the procurement of specialist advice services in increasing the number of individuals being granted legal aid, including legal representation, for discrimination claims.”
MPs were also concerned that most discrimination cases failed the legal aid cost benefit test, given that the bulk of a claim for damages was likely to be injury to feelings, where the upper limit for an award to £44,000.
They said the starting point for the cost benefit test for civil legal aid should be “a presumption that enabling discrimination cases to be brought is in the wider public interest”, reflecting the non-financial value, to the individual and to society, of enabling a discrimination claim to be brought.
The recommendations formed part of a wider conclusion that the enforcement of equality law must look to provide a sustainable deterrent and tackle institutional and systemic discrimination.
“While individuals must still have the right to challenge discrimination in the courts… the system of enforcement should ensure that this is only rarely needed: this will require a fundamental shift in the way that enforcement of the Equality Act is thought about and applied.”