Qualified one-way costs shifting should be extended to people pursuing claims under the Equality Act, the High Court heard last week.
The Equality and Human Rights Commission is funding a judicial review against the secretary of state for justice (SoS) brought by disabled campaigner Esther Leighton due to its strategic importance in ensuring access to justice for all people.
Ms Leighton is represented by London firm Deighton Pierce Glynn and Karon Monaghan QC of Matrix Chambers. The decision was reserved.
Granting permission to bring the case last year, Mr Justice Edis said: “The claim Is clearly arguable on the merits, in that it claims that the SoS has a duty to decide whether to extend QOCS to discrimination claims and has failed to do so.
“The answer by the SoS is that he has not failed to do so, and is in the process of doing so. There is no evidence as to what, exactly, this means.”
Edis J noted that, in its post-implementation review of LASPO last February, the MoJ said it would not extend QOCS to such cases “until it was satisfied that some ill-defined ‘risks’ have been ‘addressed’ in some unspecified way by some unspecified process or person”.
The MoJ argued that the government was not legally obliged to follow any particular timetable in pursuing this exercise. Edis J said: “It may transpire when evidence is served by the SoS complying with his duty of candour that there is a perfectly lawful process in place. Presently, it is arguable that there is not.”
A powerchair user, Ms Leighton was first motivated to take legal action after traditional campaigning failed to address the single steps into shops which bar her and other disabled people from participating in everyday life, despite the solution often being an inexpensive removable ramp.
The Equality Act 2010 relies on individual enforcement and she has taken cases in the small claims court against many businesses – from local shops to national chains – which have led them to start complying with the Equality Act by becoming accessible to wheelchair users for the first time.
In the majority of these, she has represented herself because she found the cost of instructing a lawyer prohibitive – especially as damages are not the aim – and legal aid has been unavailable.
But Ms Leighton said the costs risk when cases moved outside the small claims track, particularly when facing large corporations, was too great: “I can’t pay after filling my car up at many garages because of the single steps they have into their shops, but because of the petrol company’s complex franchise model, it’s impossible for me to challenge it without risking being landed with a large bill.
“This loophole means discriminatory service providers don’t change their practices as they know they won’t be challenged, resulting in thousands of disabled people being unable to access basic services on a daily basis.”
Last year, the House of Commons women and equalities committee recommended extending QOCS  to cover discrimination cases in the county court.
Ms Leighton added: “I’d be delighted if this case improves disabled people’s access to justice. Ultimately, I wish the Equality Act was adequately enforced so I didn’t have to take cases, as the costs of doing so vastly exceeds any compensation awarded, but until then I will continue to challenge discrimination to achieve the shifts in society we so sorely need.”