Can we please stop talking about “Rolls Royce justice”?

The legal community is fond of the phrase “Rolls Royce justice” to describe the most high-end level of legal services. It is deeply entrenched, popping up in lots of discussions about legal services and how much attention should be given to civil justice problems (see e.g. the Jackson Report, the New Zealand Legal Aid Bazley Report, and an Australian Law Reform Commission review of civil justice.

My first memory of this phrase jarring me was a partner using it early in my practicing days as a civil litigator. The partner told me something along the lines of “we only offer Rolls Royce service to our clients”. I wondered what on earth he meant but I soon learned – think lawyers in expensive suits, offices with thick carpet, teams of QCs, and lots of court proceedings.

So why does this term bug me? Well for starters a Rolls Royce is a product, not a service, so it is a flawed analogy. At least if a client was buying a Rolls Royce they’d know how much it cost at the outset. That isn’t true of civil litigation services and is a common complaint. Even if you know you are buying “high end” litigation services at least make it analogous with a service – say for example: “Our firm is the Emirates of legal practice. The firm representing the other party are [fill in your most-hated budget carrier here]. We are going to crush them with our smooth-gliding drinks trolley and wipe up the blood with this tray of teeny tiny hot towels”.

This analogy might also have some benefit for law firms who can see the benefits of being the budget carrier. Budget carriers can cut their prices by charging customers only for their core service and leaving everything else as an optional, paid extra. This is a useful way of thinking about unbundling legal services – what essential service can the firm offer the client and what can be left as an optional extra?

My more fundamental objection is that “Rolls Royce justice” is an elitist analogy. It says that certain legal services are only for the very rich. Now that, of course, might be true. For a firm to project this image might just be smart marketing. But what really rubs me up the wrong way is when it is applied to the courts. It popped up for example in a very interesting 2017 Civil Justice Quarterly article by Andrew Higgins and Adrian Zuckerman:

The English courts provide a Rolls Royce system of justice that works for a privileged few, and not for the many.

Well again, a false analogy, but let’s park that (pun intended) for a minute and think about what that says about that courts. They are using it for rhetorical force here but what it says is that to access to our higher courts, you need to be rich. Again, often true, but what sort of message is this sending about justice and how is this affecting how we think about the higher courts? It says “unless you are the sort of person who can afford to shop for a Rolls Royce, don’t bother coming here, this court is not for you”.

In an age where there is significant backlash against the elites (see USA and UK for examples), continuing to use this analogy to describe a core part of our constitutional system – the higher courts responsible for making the common law – is dangerous. The higher courts should not be conceived as a court only for the elite. They offer high levels of accuracy in their judgments through procedural protection. That is a good thing. If a court is making law, then we want those decisions to be well-considered. They are not just for the elite though – they offer a forum for the enforcement citizen’s rights and importantly, a forum for citizens to hold the Government to account.

Elite imagery also feeds the idea of law as domination. That is, the conception of law that it is a mask for elite interests, that while purporting to be “equal justice under the law” it really serves the interests of the ruling elite. Encouraging a view of law as domination will only feed the backlash against elites.

So I’ll suggest a different analogy for the higher courts: “fine-dining justice”. Sometimes, for a really special occasion, it might be worth saving your pennies and going to a fine dining restaurant. At this type of establishment you know great care and attention will be put into all the details of the event and you go because it an event worthy of that attention. You won’t want or need this option every time. On other occasions, the aim might just be to fill a gap as quickly as possible. On those occasions a cheap and cheerful meal from the local hole in the wall might be just the thing. That is, the small claims and tribunals forums offer “fast-food justice”.

Now this isn’t to deny that there are limitations to this analogy. There are problems for many getting into the fine-dining option, even with an event worthy of the attention, because many people simply cannot afford it. That is a big problem and one that needs solutions. The traditional solution has been the “meal voucher system” i.e. legal aid. That is a big topic in itself but all I’m suggesting here is we drop an inaccurate, elitist analogy and choose our words and images more carefully. We use analogy because it is powerful; so let’s find a better one. I’m open to suggestions @ToyCronin.