Introduction

Since the mid 1990’s, when advertising regulations around law firms were relaxed, there has been a general trend in Australia of increased litigation and court cases. Such a trend has had significant impacts on the way people and corporations behave in our society, but not always for the better.

What’s causing this increase?

A number of factors are thought to have contributed to the increased number of claims.

There is great debate over the role that ‘No Win, No Fee’ policies have had on our legal system. While there is the obvious effect of increasing the number of cases that get off the ground, these policies also help increase accessibility to the legal system by assisting people who have legitimate claims and might otherwise not be able to afford legal fees. The negative effects of these schemes are probably compounded by those that chose to abuse them, both vexatious clients and the ‘ambulance chasing’ dodgy lawyers. Similar issues arise under the increase in litigation funding, where 3rd parties provide the funds necessary to carry out proceedings then take a cut of the payout.

Another factor is the general trend of Australia becoming a ‘blaming and claiming society’ where people’s first instinct in the case of an accident is to look for someone to blame. While individual greed and other factors might play into this trend, a great part of it is probably attributable to the age of information. In our modern society, people’s access to information about their legal rights is greater than ever, and with that comes increased sense of rights and entitlements.

There are the extreme examples of people who abuse the legal system, such as Mohammed Rahman, who has been banned from commencing any legal proceedings in NSW courts after bringing 50 cases in just 10 years. He is 1 of 12 people who have made it onto the States ‘vexatious litigant register’.

What are some of the impacts of a more litigious society?

This increase has seen a number of both positive and negative effects on our society. Negative impacts can be seen through:

(a) Increased burden on our Judicial system;
(b) Longer wait times in Courts;
(c) Greater expenses incurred in assessing and preventing injury;
(d) Higher insurance premiums for many industries; and
(e) A heightened fear of lawsuits leading to overly cautious behaviour.

Local councils and medical practices have felt the effects of increased insurance premiums most of all, having to close facilities such as parks, recreational centres and rural practices that are just too costly to insure. The loss of local recreational centres and parks have also been thought to be linked to the increase in obesity in young Australians.

There are some positive effects of increased litigation too, with some of the being direct counterpoints to some of the negative aspects, such as:

(a) The greater experience incurred in preventing injury and the heightened fear of law suits leading to increased safety;
(b) Increased accountability for wrong doings; and
(c) More recognition of individual rights.

What can a good lawyer do for you?

Fighting for your legal rights isn’t always a bad thing. Despite the onslaught of vexatious claims the Courts hear nowadays, many people still have legitimate grievances that should be heard. The important thing when dealing with a claim is assessing the best course of action to achieve the best results possible. Many forms of dispute resolution can be used as an alternative to litigation, such as:

(a) Mediation;
(b) Conciliation; and
(c) Arbitration.

In fact many cases can be settled without the need for any sort of formal proceedings, through means like letters of demand and deeds of settlement.

Conclusion

Whether it’s the scalpel or the sledgehammer, great thought and care needs to be given when considering what tool to use at the outset of your claim.