Guest post by Paul Reason, costs lawyer and managing director of R Costings
Reason: Profession should not be defensive about costs
Like many in my profession and beyond, I have been moved by the case of Andrew Malkinson, the man who spent 17 years in prison for an awful crime he did not commit.
Now 60, his determination since release two years ago has been admirable, in particular his successful campaign to challenge the deduction of ‘board and lodging’ costs from wrongful imprisonment compensation.
Many were appalled to find out that exonerated prisoners were being sent a bill for their stays inside, and this has now rightfully been overturned.
In almost 25 years as a costs lawyer, Mr Malkinson’s is among the most striking miscarriages of justice I have ever seen. His recent press comments accusing the government of “penny-pinching” by attempting to recover legal costs from his compensation payout are disheartening, if far less surprising.
The case has once again exposed a massive flaw in how our sector communicates with clients, victims of injustice and the wider public.
The mechanics are worth briefly explaining. Mr Malkinson’s compensation claim against the Ministry of Justice falls under the statutory miscarriage of justice compensation scheme, established by the Criminal Justice Act 1988.
For those who have spent more than a decade wrongfully imprisoned, damages are capped at £1.3m. Cold comfort, perhaps, for nearly two decades of a person’s life; fewer than 50 claims have been successfully brought in the last 10 years, despite hundreds of applications.
But while the statutory scheme provides compensation from public funds, legal costs are not automatically paid from the same pot, meaning the solicitors who fought for Mr Malkinson may have had no route to recover their fees other than from the compensation itself.
In cases as complex as his own, the legal work required is incredibly intricate and, inevitably, costly – reportedly up to £10,000 in his case.
This is not an easy argument to make. When a man wrongfully imprisoned for 17 years finds a portion of his duly owed compensation swallowed up by legal costs, public outrage is both understandable and appropriate.
The legal profession should not be surprised by it, and it should not be defensive about it either.
Sadly, this sort of controversy is symptomatic of a profession that has consistently failed to explain itself to the people it serves.
The ongoing controversy around conditional fee arrangements and recent efforts to regulate them over concerns around transparency, reflects the same failure. When lawyers fail to show how and why the justice system operates in the way that it does, the public grows suspicious of it.
As costs lawyers, our role is not to extract money from those who are owed it, but to ensure that legal costs are proportionate, justified and properly scrutinised, keeping them manageable for all parties.
That function matters enormously. But we have a role to play in building trust by being clear on how it works.
The justice system failed Andrew Malkinson. But it was the tireless work of legal experts which ultimately set him free. That comes with a cost.
In the absence of willingness from the government to absorb legal costs in cases like his, it is up to the legal industry to be transparent about fees, crystal clear about potential costs versus benefits, and open about the work we do behind the scenes.
As for the question of who should ultimately bear legal costs in wrongful imprisonment cases, it is a moral and political one.
There is a strong argument that where the state has failed catastrophically, as it did with Andrew Malkinson, through the failures of the police, the Crown Prosecution Service, the Criminal Cases Review Commission and the Ministry of Justice, the state should bear the full cost of putting it right, including legal fees.
Andrew Malkinson was let down by almost every institution that was supposed to protect him. He should not have to fund the process of holding those institutions to account.
If the legal profession wants to rehabilitate its reputation, the place to start is speaking out clearly, publicly and with the same tenacity that Mr Malkinson has shown in making his own.
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