A/HRC/29/39
claims go beyond being an appropriate deterrent to unmeritorious cases and/or cannot be
reduced to reasonable levels through government support, “market-based” mechanisms
(such as litigation insurance and legal fee structures) or other means.
42.
The initial study commissioned by OHCHR in 2013 highlighted many differences
between jurisdictions with respect to the extent to which States have taken steps to reduce
financial obstacles to legal claims and the availability and operation of various options to
reduce costs and financial risks in practice. These differences, (together with other factors
identified in the study), are contributing to a number of structural problems in the overall
domestic remedial system, including inequalities in levels of legal protection and, arguably,
distortions in patterns of use of judicial mechanisms which may have implications for legal
development and access to justice in the longer term. Because of the short-, medium- and
long-term strategic significance of legal funding issues, overcoming financial obstacles to
legal claims has emerged as a key theme for future work by OHCHR and, as such, will be
addressed through a dedicated work stream in the OHCHR accountability and remedy
project. Project component 3 will look at strategies and practices to assist claimants who
would otherwise be prevented from accessing judicial mechanisms owing to legal costs,
and result in guidance on “minimum steps” and “good-practice options” for States.
43.
OHCHR has identified the need for further research to be carried out, not just in
respect of the efficacy of different regulatory options but also in respect of the packages of
options that, taken together, are most likely to produce optimal outcomes and the feasibility
of the options against the background of different legal structures and conditions and levels
of economic development. Detailed information (relating to matters such as the availability
of government support in business and human rights cases, other third-party funding
sources, pro bono help, conditional and contingency fee arrangements, cost shifting rules
and other methods and rules that have implications for the costs of litigation to individual
claimants) will be collected from as many different jurisdictions around the world as
possible through the global online consultation and, in respect of the 25 focus jurisdictions,
through the detailed comparative process. As part of these processes, stakeholders will be
asked for their views as to the efficacy of different measures and groups of measures, and
how these may be improved. This feedback will be taken into account in the development
of the practical guidance referred to above.
44.
The research methodology used by OHCHR for project component 3 has been
informed by past and ongoing investigations into the costs of civil and criminal procedures
at the domestic level. Preparatory work for the component included a review of the data and
research findings compiled by researchers from the University of Oxford during 2009
following a study of the costs and funding of civil litigation in more than 30 jurisdictions
around the world.7
45.
The Oxford study highlights a number of trends of relevance for future work on the
accountability and remedy project. These include the significant contraction in the
availability of legal aid that is taking place in many States, the growing interest in
contingency fees (including in States that have traditionally shown strong cultural
resistance to the idea of lawyers being paid a percentage of civil damages), developments in
litigation insurance markets and the arrival of third party litigation funders. Other insights
from the Oxford study have implications for the project more generally, including the
unintended consequences that can result from piecemeal regulatory reform and the need for
a proper understanding of the linkages between different access to justice measures that
affect their efficacy in practice. Finally, the Oxford study provides a reminder that issues
7
14
Christopher Hodges, Stefan Vogenauer and Magdalena Tulibacka, eds., The Costs and Funding of
Civil Litigation: a Comparative Perspective (Oxford, Hart Publishing, 2010).
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