Report No. 189

Chapter II

Right of Access to Justice I

I

History of the Common Law right of 'access to justice'

In England, during the reign of Henry II, in the Twelfth Century, the concepts of 'access to justice' and 'rule of law' took roots when the King agreed for establishing a system of writs that would enable litigants of all classes to avail themselves of the King's justice. But soon, the abuses of 'King's Justice' by King John, prompted the rebellion in 1215 that led to the Magna Carta which became the initial source of British constitutionalism. What it represented then and now is a social commitment to the Rule of Law and a promise that even a King is not above the law.

As Blackstone stated later, "It is the function of the common law to protect the weak from the insults of the stronger" (3 Blackstone Commentaries, 3). The Magna Carta asserted not only that the King was bound by law but the barons too and this gave protection to all 'freemen'. The three crucial clauses of the Magna Carta which are the foundation for the basic 'right of access to Courts' are in the following words:

"No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in anyway ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no man will we sell, to no one will we deny or delay right to justice.

Moreover, all those aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all our kingdom, as well clergy as laymen, as far as pertains to them towards their men.

Wherefore, it is our will, and we firmly enjoin, that the English Church be free, and the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all aspects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intention - Given under our hand - the above named and many others being witnesses - in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign."

In more than 500 years following the Magna Carta at Runnymede, Courts resolved disputes, created precedents and laid down vast principles which came to be known as the common law. The Commentaries of Sir Edward Coke and of William Blackstone crystallized the fundamental principles of common law that enshrine the basic rights of man. The principles relating to these basic human rights together with experiences in France, US and other countries entered into the Bills of Rights and the Constitutions of various countries. Every right when it is breached must be provided with a right to a remedy. Ubi Jus ibi remedium says the Roman maxim.

The latest theory is that the right to 'access to justice' became part of the common law and was later continued and recognized as part of the 'Constitutional Law'. The "common law" says Justice Laws in R v. Lord Chancellor, ex pate Witham, 1997 (2) All ER 779, "does not generally speak in the language of constitutional rights, for the good reason that in the absence of any sovereign text, a written Constitution which is logically and legally prior to the power of legislature, executive and judiciary alike, there is on the face of it no hierarchy of rights such that anyone of them is more entrenched by the law than any other. And if the concept of a constitutional right is to have any meaning, it must surely sound in the protection which the law affords to it.

Where a written Constitution guarantees a right, there is no conceptual difficulty. The State authorities must give way to it, save the extent that the Constitution allows them to deny it. There may of course be other difficulties, such as whether on the Constitution's true interpretation the right claimed exists at all. Even a superficial acquaintance with the jurisprudence of the Supreme Court of the United States shows that such problems may be acute. But they are not in the same category as the question arises: do we have constitutional rights at all?"

Laws, LJ. further states "In the unwritten legal orders of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can, in my judgment, inhere only in this proposition, that the right in question cannot be abrogated by the State save by specific provision in an Act of Parliament or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. Any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it."

Interestingly, the above decision in Witham was given in judicial review proceedings challenging the validity of the Supreme Court Fees (Amendment) Order, 1996, Article 6 of which amended the Supreme Court Fees Order, 1980 and repealed the provision which relieved litigants in person who were in receipt of income support from the obligation to pay Court fees and permitted the Lord Chancellor to reduce or remit the fee in any particular case on grounds of undue financial hardship in exceptional circumstances.

Striking down the amendment which had been issued by the Lord Chancellor, acting under the powers conferred on him by s.130 of the Supreme Court Act, 1981, the High Court (Queen's Bench Division) held that the effect of the amendment was to "bar absolutely many persons from seeking justice from the courts". It was emphatically asserted (at page 788): "Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically - in effect by express provision - permits the Executive to turn people away from the court door."

Earlier, Lord Diplock, while dealing with the High Courts' power to control the conduct of arbitrators, incidentally referred to this aspect and said in Bremen Vulkan Schiffban and Maschinenfabrik v. South India Shipping Corp., (1981 AC 909 - 1981 (1) All ER 289) as follows:

"The High Courts' power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilized system of government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant."