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The availability of funding for civil disputes including conditional fee arrangements has been the subject of attention by the government in recent years and this in turn has led to considerable public debate. Maintaining the rule of law is one of the central roles of government and if some people are denied access to the courts and consequently denied access to justice, then the rule of law and respect for the rule of law is weakened. The public funding of legal advice and help in court is often referred to as legal aid. Parliament has legislated over this matter in recent years and this answer will focus upon some of the key issues arising as a result of reforms and changes introduced by the Access to Justice Act 1999 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The concept of 'access to justice for all' is, in itself, open to interpretation and does not necessarily mean the same as legal aid or just access to the courts. During his time as Justice Secretary Ken Clarke emphasised the importance of the concept when he said "I genuinely believe access to justice is the hallmark of a civilised society." At the time he was introducing his government’s legal aid reforms that later became the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Professor Richard Moorhead of Cardiff University's law school made the point that the concept did not simply mean access to lawyers and courts adding that - 'It means access to ombudsmen, advice agencies and the police law. It means public authorities behaving properly”.
As we have come to expect from Michael Mansfield QC he takes a much broader view and has said it is "a much broader concept than access to the courts and litigation. It encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems."
In the present climate of austerity we are faced with the prospect that the money available for legal funding is a finite fund and not a bottomless pot of money. There are other public services to be funded such as education, National Health Service and defence, so legal aid has to compete for it's share. Some public services have become 'ring fenced' and as a result are, to a large extent, protected financially. This can be said of the NHS and many would agree that this should be the case. However, many services are not protected as the government has made it plain that we should all share in the pain of cuts in services. Legal aid is not 'ring fenced' and has been expected to take its share of cuts in recent times. This competition raises difficult questions and priorities need to be thought about.
Legal aid has become a political issue. Once budgets are agreed and set, the money has to be spread out over a period and this results in rationing so that individuals may find that they cannot get funding even though they meet the financial criteria. To this extent it can be said that the present funding for civil disputes does not ensure access to justice for all. However should we be more realistic and pragmatic in the first place. We live in an age when we might be expected to be more realistic and accept that services are not infinite and have to be paid for through taxation.
Eligibility for legal funding is based partly upon merit and partly upon levels of disposable income and disposable capital (savings). In general terms these eligibility levels are set very low so that only the poorest have access to justice. In effect the levels of eligibility are set at income support level. Some may say that this is only right and that it should not be the role of the state to ensure that persons on moderate or middle incomes receive funding. To fund those on higher incomes would raise issues of whether this was affordable and whether society was willing to pay higher taxes. A balanced view needs to be taken in light of the state of the economy and what we can afford and legal aid funding needs to be seen in that context.
The fact that someone may feel that they have a grievance or valid case does not necessarily mean that they are entitled to legal aid. Only specified matters are eligible for assistance. The cases for which you can get financial assistance include harassment, debt, housing, an inquest into the death of a member of your family and injunctions for gang-related violence and numerous other matters. It follows that because a number of matters are excluded the overall availability of legal funding is affected. Financial assistance is not available for every matter which may impact on our lives and excluded matters include personal injury, wills, boundary disputes, defamation and divorce unless there is domestic violence.
When every day matters are excluded from the category of cases which are eligible it becomes increasingly difficult to see legal funding ensuring access to justice for all. It is hard to see the reasoning for these exclusions unless, in addition to reducing the public expenditure, it is intended to push responsibility towards legal protection insurances schemes. This raises the obvious question of whether it is reasonable to expect the poorest in our country to spend money on legal insurance when their priorities are more likely to be finding affordable housing and money for food and clothing?
The expense of accessing lawyers and courts in civil disputes is well known, to say that funding should be directed towards only the poorest in our country may not be a complete answer. Many people on middle incomes have argued that they are not necessarily wealthy enough to be able to afford to instigate civil litigation with all the uncertainties this may bring. This has led to the identification of what has become known as the justice gap in England and Wales and it refers to the growing number of people who are unable to access a lawyer or the courts as they are excluded from legal funding and often there is no realistic affordable alternative.
The exclusion of personal injury follows the development of contingency fee arrangements as the government has endeavoured to shift the balance of legal funding from the public purse to other methods including the insurance sector. Such matters as boundary disputes are notoriously time consuming and expensive and difficult in the sense of finding successful outcomes so many would agree that it makes sense to exclude these from legal funding.
Other excluded areas include small claims and this is consistent with the policy of trying to make access to justice at this level a real possibility for low level claims where incurring legal costs are discouraged. The limit at present is £10,000 and this was increased from £5,000 in April 2013.
What is perhaps more worrying is the recent reports that the number of applications for legal assistance received by the Bar Pro Bono Unit has practically doubled over the last three years since the cuts to civil legal aid, mentioned previously, were introduced. Such data and its impact raises concerns about the availability of legal aid and assistance and what this might mean in terms of unmet legal need. We should remember it was only earlier this year in July 2015, that the Court of Appeal increased Heather Ilott’s share of inheritance to £164,000 after she fell out with her mother, who left her entire estate to three animal charities. Heather's legal battle had lasted some 10 years.
Conditional fee agreements (sometimes known as 'no win, no fee') were introduced in England and Wales by the Courts and Legal Services Act 1990 and are intended to help client's manage the cost of taking a case to court. Civil litigation is generally expensive, not least because of the cost of lawyer's fees, but also because of additional matters such as court fees. Under our legal system it is customary for the losing party to have to meet not only their own costs but those of the winning party, so the matter of costs can be particularly important factor when deciding whether to litigate. Confident as you may be when you commence legal proceedings there are uncertainties, not least being over costs and the future direction of the case and how the other party will respond.
The basis of a conditional fee arrangement is that the solicitor and client agree on a fee for the case and this is based on a fee which would normally be charged. This would be agreed prior to the proceedings commencing so that it brings a degree of certainty and this is of obvious benefit to the client.
A success fee is agreed upon. A success fee can be up to 100% of the normal fee and is added to the normal fee if the case is won. The success fee is there to compensate the lawyer for the risk of not being paid. The success fee cannot however exceed 25% of any damages recovered under the case. Since 2013 this success fee can no longer be ordered to be paid by the losing party which again enables the litigant to better understand their liability for costs at the outset.
The solicitor will get nothing in the event that the case is unsuccessful. This eventuality may be covered by insurance. In most cases the uncertainty about whether a party will need to meet the cost of the other party if the case is lost will be covered by insurance. This is a significant characteristic of conditional fee arrangements.
Conditional fee arrangements are intended to provide access to justice in cases where it is felt that it is not appropriate to publicly fund the case through legal aid. Conditional fee arrangements were extended to all civil cases (excluding family) in 2000. Previously they had only been available for personal injury, human rights and insolvency cases The government has imposed strict limits on the legal aid budget and, in addition, has ruled that some matters no longer qualify for legal aid. 'No win, no fee' arrangements are therefore seen as a means of enabling those individuals who believe they have a case with merit to proceed as some of the uncertainties about costs have been taken away. Prior to the extension of conditional fee arrangements middle income families complained that they did not qualify for legal aid as they exceeded the low levels of disposable income or capital. The extension to all civil work in 2000 was the government's way of closing this 'access to justice' gap.
Since the use of these arrangements have been permitted there has been a considerable growth in the number of law firms that are prepared to operate under conditional fee arrangements. Many law firms specifically advertise for work particularly personal injury work on a 'no win, no fee' basis.
Public funding extends beyond solicitors and barristers contracted to carry out legal aid work. Other providers include the Citizens Advice Bureau, law centres and local authorities as well as pro bono units. Whilst many provide a valuable service there may be considerable inconsistencies around the country due to lack of funding and resources.
With regard to publicly funded assistance it is argued that there are not enough publicly funded providers. This raises issues to do with access and the difficulties experienced by people without transport. This 'post code lottery' effect means that there may be adequate service providers in some parts of the country but not others.
As for those in the front line perhaps we should give the last word to Louise Christian of Christian Khan solicitors. Louise is on record as saying that our system of publicly funded law was being destroyed at precisely the same time that austerity cuts and increases in student fees were raising issues of inequality in our society. Louise Christian would like to remind many of us that when she started her law firm some 25 years ago, “….it was possible to believe in legal aid as a crucial instrument of democracy and part of the welfare state".
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