Access to Justice and Funding

Key Terms:

• Legal Aid - State-funded legal help
• Conditional Fee Agreement - An agreement with a legal representative which provides for his/her fees and expenses, or any part of them, to only be paid under certain circumstances (e.g no win no fee) - however, if the case is won, the client has to pay a 'success fee', which can be 100% more on top of the lawyer's fees (although the recommended is 25%) - if the case is lost, the client doesn't pay costs but the solicitor recovers their fees through after the event insurance, which is a one off premium payment that will cover the costs
• Contingency Fee Agreement - An agreement with a legal representative which means that if the case is lost, no fees or expenses have to be paid (no win no fee) - if the case is won, the client has to pay all costs and the success fee. The after the event insurance premium is payable out of the winner's compensation. If the case is lost, the insurance covers the costs (same as conditional fee agreement; the only difference is that the solicitor cannot recoup a success fee)
• Legal Aid, Sentencing and Punishment of Offenders Act 2012 - introduced primarily to deal with the reform of civil litigation costs and funding - limited the civil matters that civil legal aid covered

Discussion Questions

• What is meant by the unmet need for legal services - when someone has a problem which could possibly be solved by going to law, but that person is not able to get the help they need from the system
• For what reasons would someone fail to get the legal help that they need? 
• they could fail to see that their problem has legal implications
• they choose not to pursue the case because of implications like cost/seeing solicitors as unapproachable
• they could not know of the existence of a legal service or cannot find one who can help

History of Legal Aid

• 1949 - first state-funded legal aid scheme
• 1980s - system had developed into 6 different schemes
• Legal Aid Board - administered the schemes
• Cost of the system escalated
• 1999 - Access to Justice Act 1999 - major changes to the system
• 2012 - Legal Aid, Sentencing and Punishment of Offenders Act introduced further cuts to legal aid

Access to Justice Act 1999

Key changes brought in by the 1999 Act:

• Legal Aid Board replaced with Legal Services Commission
• Community Legal Services Partnerships developed
• Introduction of a quality mark
• 6 schemes replaces with 2 new schemes:
• Community Legal Service
• Criminal Defence Service

Legal Aid Today

• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has dramatically reduced the availability of civil legal aid and criminal legal aid is also being reduced
• Legal aid is now administered by the Legal Aid Agency - who is in turn controlled by the Ministry of Justice

Civil Legal Aid

• LASPO - civil legal is only available where the subject area is listed in Schedule 1
• This concerns cases primarily that are directly concerned with an individual's human rights
• Civil legal aid is no longer available for:
• Medical negligence
• Welfare benefits
• Employment, consumer disputes
• Education (except special needs cases)
• Immigration
• Housing cases
• Private family cases do not qualify for legal aid unless the case involves domestic violence, child abduction or a forced marriage
• Civil legal aid has been retained for:
• Environmental law (fly-tipping/pollution etc)
• Asylum
• Clinical negligence cases (where the negligence occurred during the first few weeks of life)
• Mental health and child welfare cases
• Judicial review (a court process to test the legality of something)
• Means that tests for civil legal aid have been tightened
• Civil Legal Advice (CLA) is a national telephone service and website that provides free legal advice on civil matters

Criminal Legal Aid

• Still given on a demand-led basis, no set budget, all cases that fit the merits and means test criteria will be funded
• The Legal Aid Agency funds directly the provision of criminal legal services, it employs public defenders and pays for duty solicitor schemes - payment is made at the end of the case
• Therefore criminal legal services are provided by both public and private lawyers
• Contracts for criminal legal aid - there will be 2 different contract types - Legal Aid work is 'awarded' to firms on a 'franchise' basis (a contract between the government and a law firm for the firm to do the work for an agreed hourly rate) - Law firms need to do a lot of L.A casework in order to make it profitable
1.  A set number of Duty Provider contracts awarded in each geographic area through competitive tendering
2. Unlimited number of Own Client Work contracts to any provider who satisfies the requirements
• Means - income/outgoings, capital, savings
• Merits - could you win your case/successfully defend (if criminal)
• The Criminal Defence Service Act 2006 - reintroduced the means test for criminal cases in the Magistrates Court, Crown Court cases had a means test reintroduced in 2010
• LASPO 2012 - introduced a further financial eligibility threshold in the Crown Court - this again restricted those eligible for legal aid
• If the defendant is acquitted their contributions will be refunded

Public Defenders

• The Legal Aid Agency employs a number of criminal defence lawyers, known as public defenders
• They are limited in number and there are no plans to expand the scheme

Criminal Defence Direct

• A telephone service called Criminal Defence Direct was set up in 2005 - it provides free telephone advice to people detained by the police for non-imprisonable offences

Problems with the legal aid system

• Access to justice is often denies
• Problems with the public defender scheme
• The cost of criminal cases
• Unfair trial if legal aid is refused
• Too heavy reliance on private practice

Other Legal Service Providers

• Other than solicitors and barristers, the following agencies/persons offer legal advice:
• Law centres
• Community Legal Advice Centres
• Citizens' Advice Bureaux
• LAs
• Trade Unions
• Motoring Organisations
• Pro Bono Clinics
• Insurance

Conditional Fee Agreements

Courts and Legal Services Act 1990 & Access to Justice Act 199

• A solicitor can agree to take no fee, or a reduced fee if they lose, and raise their fee by an agreed percentage if they win (maximum of double the usual fee)
• The extra fee is called the 'uplift' or 'success fee'
• The loser pays the winner's costs and the uplift together with the insurance premium (if the court orders, and insurance has been taken out)
• Access to Justice Act 1999 - conditional fee available for all cases except medical negligence

Conditional Fee Agreement - Problems

• Coventry v Lawrence (No2) (2014) - in this case the homeowners had won a claim for insurance against a small business operating a noisy speedway track near their home. The claim was worth £74,000, but the costs order against the business was £640,000. The Supreme Court suggested that cost arrangements for conditional fee agreements might breach a defendant's right to a fair trial, since defendants who lose their case have to pay the lawyer's success fee and after the event insurance of the winning party, which can be extremely costly, as in this case
• Motto v Trafigura (2011) - this is the biggest costs case in legal history. Here lawyers brought a claim on behalf of 30,000 Africans who had suffered ill health when a contractor illegally dumped toxic waste in the sea near where they lived. They won the case and were awarded £30 million, which meant £1,000 compensation for each person. The lawyers, working under a conditional fee agreement, charged 100% success fee which took their bill to over £100 million; the defendants challenged this and the bill was reduced by 40%

Conditional Fee Agreements - after LASPO 2012

• Since Laspo 2012 - the success fee for conditional fee agreements is no longer recoverable from the losing party, except for privacy, defamation and insolvency claims
• The client will now have to pay the uplift fee themselves, even if they win their case
• For personal injury cases the success fee is now capped at 25%
• For all other cases, the success fee can be 100% of the lawyer's usual fee
• The result is that conditional fee agreements will probably be used less

Contingency Fee Agreements - LASPO 2012

• Under a contingency fee agreement, lawyers receive a share of the successful claimant's award of damages
• 'Contingency fee' comes from the fact that the payment of the lawyer is contingent on the claim being successful and damages being awarded 
• Before 2012 they were generally unlawful
• LASPO now allows lawyers to enter into contingency fee agreements known as damage- based agreements with their clients
• Lawyers are allowed to receive up to 25% of the damages for personal injury cases, 35% for employment cases and 50% for all other cases
• If the defendant loses they pay the claimant's costs, if the claimant loses each side bears their own costs

Advantages of contingency fee agreements

• No cost to the state - unless the dispute is eligible for Civil L.A
• Widens access to justice - unless law firms decide not to offer CFAs or Contingency Fees
• Encourages lawyers to perform better as they have a financial interest in winning - as long as the case is 'winnable'

Disadvantages of contingency fee agreements

• Low take-up rate - they are not popular with lawyers as there is no success fee
• No win no fee, in reality means no win, pay anyway (bleeding bastards) - there are also expenses that have to be paid upfront (Disbursements, A.T.E insurance
• Lawyers too heavily involved in the financial outcome
• Risky, uncertain cases will not be taken on - anything less than a 50% likelihood of success will usually not be taken up by a lawyer as they consider it to be too risky

Reforms

• Lord Carter's review, Legal aid: a market-based approach to reform (2006)
• Government paper, Legal aid: a sustainable future (2006)

Recommendations included:

• Procurement contracts and Price competitive tendering
• Price competitive tendering received a lot of opposition and in 2014 the Government decided not to introduce it. Instead they brought in Duty Provider work, though this is awarded through competitive tendering