Why you won't get your day in court. (553)

To the Business, Energy and Industrial Strategy Secretary:
For Clarity - Attempt 553.

553) "Why you won't get your day in court" Jed S Rakoff.
(www.nybooks.com/articles/2016)

Dear Mr Clark,

This timely article about the ballooning role of private arbitrators in the USA mirrors what we've ben saying about The Golden Age of The Ombudsman here in the UK.

Jed S Rakoff, writing for the New York Review of Books, concludes, "Why you won't get your day in court" by stating,
"Arguably even worse, the situation I've described reinforces the belief of citizens that the courts are not an institution to which they can turn for justice, but are simply a remote and expensive luxury reserved for the rich and powerful."

How true. Just try asking Rebekah Brooks.

The advice our solicitor gave us was not to take legal action against our RICS poorly regulated surveyor as, "it could be financially ruinous." Heeding his advice we turned to the RICS appointed ombudsman. This turned out to be financially damaging but not ruinous.

The Ombudsman Services:Property sales pitch to the unwary consumer is that it is both, "fair" and "independent." We believe it is neither. When an expensive purchasing decision goes badly wrong, surveyors have devised a scheme that ensures they don't pick up the tab, they've rigged it so that their client does.

The proliferation of ombudsman schemes here apes the growing trend for arbitrators in the USA.

Jed S Rakoff tells us,
"A seventh factor is the increasing diversion of legal disputes to regulatory agencies."
That,
"A further result is that most legal disputes are rarely decided by judges and almost never by juries."
And still another result is,
"that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished - with the all too willing acquiescence of the judiciary itself."

Here, politicians, civil servants and Privy Councillors have acquiesced in the mushrooming of such schemes and then shuffled their papers and looked the other way when the schemes they so readily approved failed to deliver on their extravagant and wildly exaggerated promises.

Money seems to be the determining factor here.

We're further told that,
"The arbitrator is limited, however, in the relief she can afford employees or consumers even if she should find in their favour - the company imposed agreements that mandate arbitration typically also prohibit an award of punitive damages or the convening of a class action that would include others who have the same or similar complaints."

Ombudsman Services:Property do not define what they mean by a proportionate financial award even if they should find in favour of the complainant and hand one out.

The Concepcion Case and the late Justice Antonin Scalia also has a resonance with what is happening here. That case,
"Has attracted much criticism because of what some legal commentators view as its strained reasoning, which they typically ascribe to the pro-business stance of the court's majority when Scalia was part of it."
We've always said that strange reasoning abounds at OS:Property and one only has to read its Minutes and Annual Reviews to see its rampant pro-business bias.

Just as Congress delegated judicial powers and responsibilities to administrative agencies, so Parliament handed them to private ombudsman schemes.
"These agencies, which are branches of the executive, then create their own internal courts, with procedures that bear little resemblance to those found in the judiciary. Furthermore, these administrative courts are run by judges who are selected by, paid by and subject to review by the administrative agencies themselves. Yet Congress, often at the behest of the President, has given increasing powers to these courts, whose independent status is often doubtful."

Here in the UK we have maladministrating ombudsmen, some of whom arrive at decisions in an illogical manner, who tell us what civil justice is. 

We believe it's rigged.

Q. Mr Clark, when are you going to step up, challenge the vested interests of the RICS and its appointed company, Ombudsman Services:Property and right the wrongs of its ombudsman's illogical Final Decisions and its executives' maladministration?

Yours sincerely,
Steve Gilbert - The Ombudsmans61percent Campaign.