Access to Justice and funding

Question 1

What is a Conditional fee arrangement

Answer 1

• ‘no win, no fee arrangement’
• separate from legal aid system, between client and legal representative
• Client doesn’t have to pay for losing sides legal fees
• Lawyer gets a success fee of damages if the case is won - up to 100%
• 25% on personal injury cases
• Client doesn’t have to worry about up front costs
• Alternative to Legal aid if ineligible

Question 2

What are the sources to funding for access to justice

Answer 2

• Legal Aid ( civil and criminal)
• CFAs
• Citizens advise Bureau

Question 3

explain a civil means test

Answer 3

• Some may automatically be accepted to be eligible due to their place on the passport system
• income limit- must be less than 2.6k a month
• capital limit- Client must have no more than a capital of more than 8k.

Question 4

Explain a civil merits test

Answer 4

• Prospects of success- more than 50 percent
• public interest- must benefit a class of individuals
• proportionality test whether the benefit gained from funding justifies to costs
• likely damages- have to be high enough to compensate lawyer payment.

Question 5

Explain a criminal means test

Answer 5

• qualification for legal aid and a representation order in the magistrates court
• initial means test- if household income is between 12k and 22k then a full means test is carried out.
• full means test- Takes into account annual costs such as child care, food, clothing etc.

Question 6

Explain a criminal merits test

Answer 6

• Test considers previous convictions, nature of offense and risk in custody.

Question 7

Explain the first step in the history of legal aid

Answer 7

1949 Welfare State- implemented after second world war. Legal Aid board administered legal aid and people were assessed on their means to pay and whether the case merited funding

Question 8

Explain the second step in the history of legal aid

Answer 8

1980s: Different types of legal aid
6 different schemes administered by the Legal Aid Board:
- Green form scheme
- Criminal legal aid
- duty solicitor (police and magistrates)
- civil legal aid
- assistance by way of representation

Question 9

Explain the third step in the history of legal Aid

Answer 9

1999 Access to Justice Act
- Goal was to ‘modernize justice’
- improve quality
- improve accessibility
- tighter control of budget
- promote competition between provides (contract for legal aid services)

Question 10

Explain the last step in the history of legal aid

Answer 10

-Lord Jackson report 2011 recommendations implemented into Legal aid, sentencing and punishment of offenders Act 2012.

Question 11

Explain influence of LASPO 2012

Answer 11

• Removed some civil cases from eligibility to legal aid.
• Exceptional funding can be provided in certain circumstances where to not provide would be a violation of human rights.
• only firms with contracts to the Legal aid agency can provide legal aid
• Provide alternative options and ways of funding such as damage based arrangements and conditional fee arrangements.

Question 12

Advantages of CFAs

Answer 12

Improves Access to Justice
-Allows individuals who cannot afford legal fees upfront to bring a case.
-Particularly helpful in personal injury, defamation, and employment disputes.

Encourages Early Settlement
-Since lawyers only get paid if they win, they are incentivized to resolve cases efficiently.

Reduces State Burden
-Cuts down reliance on legal aid, which has been restricted under LASPO 2012.
-Promotes private funding for civil litigation. Callery v Gray [2001]

Legal Expenses Insurance Can Support CFAs
-After-the-event (ATE) insurance protects claimants from paying the other side’s costs if they lose.

Question 13

Disadvantages of CFAs

Answer 13

Reduces Claimant Compensation

Successful claimants may lose up to 25% of damages to the solicitor’s success fee.

Case: Callery v Gray also raised concerns about high costs being passed to the losing party or eroding compensation.

“Cherry-Picking” of Cases

Lawyers may only accept high-probability cases to secure payment, leaving weaker (but valid) claims unsupported.

Risk of Inflated Costs and Complexity

ATE insurance premiums and success fees can be high or unclear.

Case: Sarwar v Alam raised concerns about lack of transparency in the way costs and insurance premiums were explained to clients.

Commercialisation and Claims Culture

CFAs, especially when combined with aggressive advertising, have contributed to the perception of a compensation culture in areas like personal injury.

The pressure to win may encourage settlements over fairness, undermining the ethical role of legal professionals.