Access to Justice and Funding Flashcards
Define legal aid
- State funded legal help
What is a conditional fee agreement?
- An agreement with a legal representative which means that fees and expenses (or any part of them) are to be paid only under certain circumstances
What is the difference between a conditional fee agreement and a contingency fee agreement? (4)
- Under a contingency fee agreement, if the case is lost, no fee is payable to the solicitor.
- The solicitor also cannot charge their client more than they would have done had they taken the case on the normal basis
- Under a conditional fee agreement, a solicitor can charge his client the usual charge out rate, plus an uplift (if successful).
- If the case is not successful then no fee, or a reduced fee, will be payable.
What is a contingency fee agreement?
- No win no fee
Why was the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced? What did it do?
- Introduced primarily to deal with the reform of civil litigation costs and funding
- Limited the civil matters that civil legal aid covered
What is met by the unmet need for legal services?
- When someone has a problem which could possibly be solved through the 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? (3)
- They could fail to see that their problem has legal implications
- They choose not to pursue the case because of implications such as cost/seeing solicitors as unapproachable
- They could not know of the existence of a legal service or cannot find one who can help
When was the first state funded legal scheme?
- 1949
By what decade had the system developed into 6 different schemes?
- 1980s
Who administered the legal aid schemes?
- Legal Aid Board
What did the 2012 LASPO Act do to legal aid?
- Introduced further cuts
What key changes did the 1999 Access to Justice Act bring in? (4)
- 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
What two schemes replaced the six schemes in legal aid?
- Community legal service
- Criminal defence service
Who is legal aid currently administered by?
- The Legal Aid Agency
What controls the legal aid agency?
- Ministry of Justice
Due to the 2012 LASPO Act, what is legal aid no longer available for? (7)
- Medical negligence
- Welfare benefits
- Employment
- Education
- Immigration
- Housing cases
- Private family cases, barring exceptions (e.g forced marriage)
What has civil legal aid been retained for? (5)
- Environmental law
- Asylum
- Clinical negligence regarding first few weeks of life
- Mental health and child welfare
- Judicial Review
When is criminal legal aid given?
- When a case fits the merits and means test
- What does the Legal Aid Agency do in terms of criminal legal aid? (3)
- Funds the provision of criminal legal services
- Employs public defenders
- Pays for duty solicitor schemes
What is meant by means?
- Income/outgoing, capital, savings
What is meant by merits?
- Whether the case could be won or not
What did the Criminal Defence Service Act 2006 reintroduce?
- The means test for criminal cases in the magistrates court
When did the Crown Court have a means test reintroduced?
- 2010
What did the 2012 LASPO Act introduce in the Crown Court?
- A further financial eligibility threshold which restricted those eligible for legal aid
What is Criminal Defence Direct?
- A free telephone service set up in 2005 to provide advice to people detained by the police for non-imprisonable offences
What are the problems with the legal aid system? (5)
- Access to justice is often denied
- Problems with the public defender scheme
- The costs of criminal cases
- Unfair trial if legal aid is refused
- Too heavy reliance on private practice
Name three agencies/persons offering legal advice (other than solicitors and barristers)
- Law centres
- Trade unions
- Pro Bono clinics
What problem with conditional fee agreements arose in Coventry v Lawrence (2014)? What did the Supreme Court suggest?
- The costs order was almost 10x the worth of the claim
- Cost arrangements for conditional fee agreements might breach the right to a fair trial, since defendants who lose have to pay success fee and after the event insurance
What happened in Motto v Trafigura (2011)?
- The lawyers working under a conditional fee agreement charged 100% success fee, which took the bill from £30 million to over £100 million
What did LASPO 2012 change about conditional fee agreements?
- The success fee for conditional fee agreements is no longer recoverable from the losing party, except for privacy, defamation and insolvency claims
What is the cap on success fees for personal injury?
- 25%
What did LASPO 2012 change about contingency fee agreements?
- Lawyers are now allowed to enter into contingency fee agreements known as damage - based agreements with their clients
What are the limits of the damages lawyers can receive under contingency fee agreements? (3)
- 25% for personal injury
- 35% for employment cases
- 50% for all other cases
Under contingency fee agreements, what happens if the defendant loses? What happens if they win?
- Loses - pays the claimant’s costs
- Wins - each side pays own costs
What are the advantages of contingency fee agreements? (3)
- No costs to the state UNLESS the dispute is eligible for Civil Legal Aid
- 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
What are the disadvantages of contingency fee agreements? (4)
- 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 (there are also expenses that have to be paid upfront)
- Lawyers are too heavily involved in the financial outcome
- Risky - uncertain cases won’t be taken on - anything below 50% chance will usually be deemed too risky
