Access to Justice

Question 1

what is access to justice?

Answer 1

a system that is accessible to anyone, everyone can get the help they need

particularly involves help with funding the costs of the case

Question 2

reasons why people fail to seek help or are denied access to justice

Answer 2

COSTS — the quote by Mr Justice Darling” the law courts are open to all men like the doors of the Ritz” suggests that anyone can use the legal system but the costs prevent many from seeking justice, high costs due to lawyer fees and legal proceedings, may be unaware of the existence of legal funding

LAWYERS — fear of dealing with lawyers as the process can be intimidating and confusing

LACK OF KNOWLEDGE — may not realise their problem is a legal one or not know where their nearest solicitor is located or how to get help

NO LEGAL HELP AVAILABLE — solicitors firms often ignore areas where ordinary people need advice such as housing and debt, firms are also often geographically inaccessible as they tend to be in town centres and wealthier areas

Question 3

government funding of criminal cases

BASIC INFO

Answer 3

purpose of legal aid is to provide access to justice for the poorest members of the public

Legal Aid Agency (LLA) provides legal aid services such as advice schemes and representation to those needing it

LLA forms contracts with lawyers in private practice or employs public defenders

Ministry of Justice controls the LLA

Director of Legal Aid Casework supervised criminal legal aid

Question 4

government funding of criminal cases

GOV FUNDED ADVICE SCHEMES

Answer 4

under s.13 LASPO 2012, anyone detained at a police station and involved in investigations may consult a solicitors for initial legal advice and assistance

duty solicitors provide advice and are available 24 hours a day, may be over the telephone or face to face

not means tested - anyone is eligible as it does not depend on income

Question 5

government funding of criminal cases

GOV FUNDED REPRESENTATION

Answer 5

to get representation in court, D must qualify under the interests of justice test as well as the means test

INTERESTS OF JUSTICE TEST - D must come within at least 1 of 5 factors which include…
• conviction could lead to loss of liberty or livelihood
• D may be unable to understand proceedings
• case involves expert cross examination of witnesses, etc

MEANS TEST - consider gross and disposable income
• MC = automatically eligible if under 18 or receiving benefits, but if gross income is above £22,500 then D is ineligible
• CC = free for those on low incomes but if D has a higher income then they have to contribute some of the costs and will have to pay privately if disposable income is above £37,500

Question 6

government funding of civil cases

GOV FUNDED ADVICE SCHEMES

Answer 6

Civil Legal Aid (CLA) scheme — a government funded scheme that provides advice for civil cases over the telephone on areas such as debt, housing and domestic abuse

Citizens Advice offices — not for profit organisations under contract with the LLA to give advice and help people on low incomes eg help writing letters (means tested, depends on income)

Question 7

government funding of civil cases

GOV FUNDED REPRESENTATION

Answer 7

funding for legal aid comes from the governments fixed annual budget of approximately £800 million which means they cannot afford to make legal aid available to everyone

LASPO 2012 — legal aid is not available for civil cases unless it is a category specifically mentioned in the Act (such as cases involving children’s rights, mental health tribunals, asylum, etc), legal aid is not available for personal injury claims, breach of contract cases, etc

MEANS TESTED — based on gross and disposable income and capital
• gross income = ineligible for funding if GI is too high, if below a set amount then disposable income is considered
• disposable income = ineligible if DI is too high, if below a set amount then can receive full legal funding (but must pass both GI and DI tests)
• pay contributions to funding if DI is between the minimum and maximum levels
• must use own money to fund costs of case if disposable capital exceeds £8000

Question 8

private funding

Answer 8

anyone who can afford to, should pay for a solicitor or barrister to deal with legal matters using their own resources

however, there are unknown costs that sometimes arise due to the case being prolonged

if claimant wins, most costs can be recovered from the other side

if claimant loses, they have to pay their own costs and usually those of their opponent too

legal insurance is a way of funding a court case… for example, most motor insurance policies offer cover for help with legal fees arising from road accidents

Question 9

private funding

CONDITIONAL FEE AGREEMENTS

Answer 9

often involved in private funding of cases

help overcome the difficulties of estimating how long a case with last or cost

civil cases only (except family cases), not available for criminal cases at all

no win, no fee — lawyers payment is conditional on whether the they win the case or not, the client only pays costs if the case is won and doesn’t pay if they lose

lawyer and client agree in a basic fee (which would usually be charged for such a case) and a success fee if they win the case, success fee can be up to 100% of the basic fee but most agreements include a cap which prevents it from being more than 25% of damages won

winning claimant pays the basic fee and success fee but cannot claim success fee back from opponent

insurance is usually taken out so if a case is lost the insurance pays the other sides costs

available from solicitors and claims firms but these firms usually only accept cases likely to win, makes it difficult to find solicitors to deal with risky cases

Question 10

others advice agencies

Answer 10

CABx

Law Centres

Trade Unions

Bar Pro Bono Unit

Solicitor Firms

Websites

Insurance Companies

Question 11

Citizens Advice Bureaux (CABx)

Answer 11

offer free advice on a variety of issues including benefits and debt

local solicitors volunteer their time

available in most towns

Question 12

Law Centres

Answer 12

offer free, non means tested legal services to people in their area

legal advice and sometimes representation

usually in disadvantaged areas where there are few solicitors

specialise in social welfare law

Question 13

Trade Unions

Answer 13

offer members free legal advice for work related problems and sometimes personal injury cases

Question 14

Bar Pro Bono Unit

Answer 14

charitable organisation run by volunteer barristers

free advice to those unable to afford it or those who cannot get legal aid

any area of law advice

represent clients in court where necessary

Question 15

Solicitor Firms

Answer 15

free half hour first interviews

local CABx will have a list of solicitors offering this service

Question 16

Websites

Answer 16

such as AdviceNow

offer free online legal advice

Question 17

Insurance Companies

Answer 17

may offer (at an additional cost) legal cover included in their policy which will allow access to legal advisors for most civil matters

Question 18

evaluation of access to justice

CRIMINAL FUNDING ISSUES

Answer 18

austerity

advice deserts

means testing

lack of lawyers

interests of justice testing

Question 19

criminal funding issues

AUSTERITY

Answer 19

the ministry of justice has been required to make severe cuts to the legal budget and did so by £320 million in 2014

the budget has not been increased with inflation

limits what can and cannot be funded, therefore limiting access to justice

does not allow the criminal justice system to be accessible to anyone, particularly true of poorer people who cannot get the help they need

lack of funding may result in more people representing themselves as, these people will be at a distinct disadvantage when faced with a qualified and experienced lawyer on the opposing side — can be very costly to them if they lose

Question 20

criminal funding issues

ADVICE DESERTS

Answer 20

LLA has not made enough contracts with legal service providers or lawyers to undertake government funded work, in 2017 there was less than 2000

different regions are allocated different sums of money and cuts affect the poorest cities suffering unduly

legal aid is often geographically inaccessible— in rural areas and poorer cities, the nearest legal aid provider could be miles away

Question 21

criminal funding issues

MEANS TESTING

Answer 21

eligibility levels are so low that only those on the lowest levels of income will qualify

only the poorest have access to justice this way which is only 30% of the whole population

those of modest levels of income but who may not be able to actually afford to pay the costs of the case themselves often fall outside the eligibility levels

in the MC, it’s very hard to get legal aid unless under 18 or receiving benefits — around 75% of adults do not qualify for legal aid in the MC

in the CC, there are less severe limits but cases tend to be more serious and more expensive in the long run — if D does not qualify they can be left unrepresented which increases the risk of injustice

Question 22

criminal funding issues

LACK OF LAWYERS

Answer 22

significant drop in law firms doing criminal legal aid work

in the 1990s there were over 5000 firms doing this but by 2012 there were fewer than 2000 firms

a reason for this decline is that it is often financially viable for some lawyers to remain in such schemes

result in a limited access to justice as the best and most skilled lawyers are unwilling to take on government funded cases

Question 23

criminal funding issues

INTERESTS OF JUSTICE

Answer 23

interests of justice test is very difficult to fulfil unless liberty is at stake

there has to be a real risk of imprisonment or the defendant will probably not receive legal aid

Question 24

evaluation of access to justice

CIVIL FUNDING ISSUES

Answer 24

austerity

advice deserts

means testing

conditional fee agreements

lack of funding

Question 25

civil funding issues

AUSTERITY

Answer 25

the ministry of justice has been required to make severe cuts to the legal budget and did so by £320 million in 2014

the budget has not been increased with inflation, in 2010 the budget was £2.3 billion but in 2014 this fell to £1.8 billion

limits what can and cannot be funded, therefore limiting access to justice

does not allow the legal system to be accessible to anyone, particularly true of poorer people who cannot get the help they need

Question 26

civil funding issues

LACK OF FUNDING

Answer 26

funding of civil cases is being continually restricted

under LASPO 2012 it is not available unless it is a category recognised in the Act which means it’s not available for all civil claims such as personal injury

many cases no longer qualify for funding such as child contact, divorce, employment and medical negligence unless in very limited circumstances

this lack of funding may result in more people representing themselves as “litigants in person”, these people will be at a distinct disadvantage when faced with a qualified and experience lawyer on the opposing side — can be very costly to them if they lose

Question 27

civil funding issues

ADVICE DESERTS

Answer 27

LLA has not made enough contracts with legal service providers or lawyers to undertake government funded work, in 2017 there was less than 2000

different regions are allocated different sums of money and cuts affect the poorest cities suffering unduly

legal aid is often geographically inaccessible— in rural areas and poorer cities, the nearest legal aid provider could be miles away

Question 28

civil funding issues

MEANS TESTING

Answer 28

eligibility levels are so low that only those on the lowest levels of income will qualify

only the poorest have access to justice this way which is only 30% of the whole population

those of modest levels of income but who may not be able to actually afford to pay the costs of the case themselves often fall outside the eligibility levels

if D does not qualify they can be left unrepresented which increases the risk of injustice

Question 29

civil funding issues

CONDITIONAL FEE AGREEMENTS

Answer 29

for civil cases there are conditional fee agreements available

help overcome the difficulties of estimating how long a case with last or cost

no win, no fee — lawyers payment is conditional, the client only pays costs if the case is won

lawyer and client agree in a basic fee and a success fee if they win the case, most agreements include a cap which prevents the success fee from being more than 25% of damages won

available from solicitors and claims firms

HOWEVER… these firms usually only accept cases likely to win, makes it difficult to find solicitors to deal with risky cases