Sorabji: Voice crying in the wilderness?
Legal expenses insurance (LEI) should be compulsory for everyone, the co-chair of the Civil Justice Council (CJC) working party on litigation funding has told MPs.
Dr John Sorabji, a legal academic and barrister, also called on the government to make retrospective the new legislation it has promised to reverse the Supreme Court judgment in PACCAR.
Dr Sorabji, an associate professor at UCL Faculty of Laws, co-chaired the working party with Mr Justice Simon Picken, producing its report on litigation funding last June.
Giving evidence to the justice select committee as part of its access to justice inquiry, he said he was aware that he was “eccentric” where LEI was concerned and was not speaking on behalf of the CJC – the report recommended only that the government promote the uptake, utility and use of LEI.
“I would like to see serious consideration being given to mandatory legal expenses insurance, so everybody has to have it and we have universal coverage,” he said.
“I may be a voice crying in the wilderness on this and the CJC did not recommend it [in its report on the issue in 2017], though Sir Rupert Jackson did consider it in 2009.”
Dr Sorabji, a former principal legal adviser to the Lord Chief Justice and Master of the Rolls, said England and Wales had a “very poor approach” to LEI, with a take-up rate of only 8% in England and 13% in Wales.
In Sweden, where LEI is not compulsory, 95% of the population nonetheless had it “as a consequence of clear government policy from the 1990s to move individuals from civil legal aid to an insurance-based model”, he explained.
The chair of the justice select committee, barrister Andy Slaughter, commented: “One reason I suspect people don’t choose to have it in this country is because they think it’s a rip-off.”
Dr Sorabji replied: “I don’t know about that. Most people don’t take out LEI because they don’t think they’ll need it. People tend not to insure for things they think are never going to happen to them.”
He said that in Germany the fact that 35% of people had LEI was not the result of government policy, but because there was a “vibrant market” for it.
“People say we don’t have a vibrant market in this country, but vibrant markets can be created and nurtured. It’s not an insurmountable problem.”
Dr Sorabji said the CJC found in 2017 that “a lot of people did not use LEI even though they had it” and considered whether employers should offer their employees LEI on an opt-out basis.
On PACCAR, which classed litigation funding arrangements as damages-based agreements, Dr Sorabji said he hoped that the legislation promised by the government in December to reverse the ruling would be brought forward “sooner rather than later as there remains uncertainty in the market”.
He said the bill should be retrospective, as was the case in the previous government’s bill to reverse the PACCAR ruling, introduced into Parliament in March 2024 but dropped in the wash-up before the July general election.
“I can’t see a reason for the change in position. There could be a view that retrospective legislation is not generally brought forward, though from what I read in the newspapers the proposed legislation on jury trials is intended to be retrospective.”
Dr Sorabji added: “There remains a degree of uncertainty as a consequence. Not all agreements which fall foul of PACCAR have been renegotiated. You can’t always leave the past to itself.”
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