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Facilitating access to justice: managing the cost of litigation in the subordinate courts of Bangladesh

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posted on 06.06.2022, 06:54 by Ummey Sharaban Tahura

Litigation costs have been identified as one of the key barriers to accessing justice in Bangladesh. Bangladesh has long struggled with a lengthy, expensive, and inefficient court system that has denied most people access to justice. Since the beginning of this century, Bangladesh has started to reduce case backlogs; however, reducing litigation costs has not yet been considered as a means for improving justice. This thesis argues how litigation costs impact access to justice and whether a cost-effective litigation system can be introduced to facilitate access to justice in the subordinate courts of Bangladesh.

The Bangladesh government has introduced legal aid services to improve accessibility for people who are indigent by paying their lawyers’ fees and other incidental expenses. However, the effectiveness of these services is hampered in many ways including by the absence of an effective litigant eligibility test, the coverage of only limited litigation costs and significant budgetary constraints. Further, the present cost laws in Bangladesh overlooked economic remedies due to the lack of integrated costs rules. The century-old laws and the manual litigation processes have not been updated to meet the changing legal needs. The prolonged uncertainty about when a case will be resolved decreases the affordability for most people to pursue legal action. Even the case-related individuals (later in this thesis the term case-related individual will be referred to as professional stakeholders), such as lawyers, clients, judges, and court staff, collectively contribute to delaying the processing time for cases and increasing the costs. Thus, the lack of transparency, absence of formal case management, economic disparity of the litigants, manual legal processes, low disposal through alternative dispute resolution (ADR) and limited remedial measures of the expensive, uncertain, and lengthy court processes contributed to increasing the number of pending case backlog to 3,684,728 by 31 December 2020 which consequently deny access to courts for the majority of people in Bangladesh.

This thesis considers the potential for various reforms to develop a cost-effective litigation system for maximising access to justice in Bangladesh. This research employs a doctrinal and empirical research methodology to investigate why and how litigation costs increase, what financial and legal supports are available and what remedial measures can be adopted to optimise access to justice for the majority of people in Bangladesh.

Through examination of the existing literature, laws and data collected from the empirical study, this thesis argues that the legal processes should be cost-effective, accessibility must be ensured, and proper remedies must be provided to facilitate access to justice. This thesis emphasises on people’s accessibility into the justice system. While doing so, it identifies shortcomings in the existing state-provided legal aid scheme and explores other alternative support options. It also examines the existing cost provisions and suggests that introducing clear, systematic, and integrated cost rules would effectively control legal costs and allow the fair distribution of costs between litigants to increase access to justice through remedial measures. This research examines how the current manual legal system became expensive and hinders the majority of Bangladeshis from accessing courts. It further explores why the ADR system has not been successful in dispute resolution process either. Finally, it explores the potential for incorporating technology in the Bangladesh court system to increase efficiency and reduce litigation costs. The findings of this thesis have been drawn from empirical research involving professional stakeholders who are an integral part of the justice sector.

In conclusion, this thesis argues that the facilitation of access to justice requires a combination of legal reforms and sufficient budgetary allocations to reduce the costs of civil dispute resolution.

History

Table of Contents

Chapter 1: Introduction: litigation costs and implications for access to justice in Bangladesh -- Chapter 2: Philosophical aspects of access to justice and cost barriers -- Chapter 3: Bangladesh judiciary: the institutional arrangements -- Chapter 4: Bangladesh cost rules -- Chapter 5: Role of alternative dispute resolution in litigation costs and access to justice -- Chapter 6: Legal support services to enhance access to justice -- Chapter 7: The role of justice sector actors and institutions in raising litigation costs -- Chapter 8: Digital solutions to reduce litigation costs -- Chapter 9: Conclusion: devising a better and more cost-effective litigation system in Bangladesh -- Bibliography -- Appendices

Notes

A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy in Law Includes bibliographical references (pages 252-296)

Awarding Institution

Macquarie University

Degree Type

Thesis PhD

Degree

Thesis (PhD), Macquarie University, Macquarie Law School, 2021

Department, Centre or School

Macquarie Law School

Year of Award

2021

Principal Supervisor

Shawkat Alam

Rights

Copyright disclaimer: https://www.mq.edu.au/copyright-disclaimer Copyright Ummey Sharaban Tahura 2021.

Language

English

Extent

xxii, 306 pages

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