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Advice and Representation Flashcards

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1
Q

What are the three main difficulties for an ordinary person seeking legal assistance?

A

Lack of Knowledge
Intimidation
Cost

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2
Q

Lack of knowledge

A

many people do not know where their nearest solicitor is located, or, if they do know this, they do not know which solicitor specialises in the law involved in their particular case.

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3
Q

Intimidation

A

people often have a fear of dealing with lawyers, they feel intimidated.

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4
Q

Cost

A

solicitors charge from about £100 an hour for routine advice from small local firms, to over £500 an hour for work done by a top city firm of solicitors in a specialist field.

It is still a major hurdle for individuals wishing to start a case, and prevents people from seeking justice.

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5
Q

What is access to justice?

A

If cannot get it- being denied to it.

It involves both an open system of justice and also being able to fund the costs of a case. There has been various schemes aimed at making the law more accessible to everyone.

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6
Q

Go into more detail on the issue of cost separated into civil and criminal ?

A

Civil: High Court- can run into thousands of pounds.
County Court: cheaper but will probably cost more than the amount that is being claimed.
Also, the additional risk is that the loser has to pay the winner’s costs.

Criminal: A persons liberty may be at stake and it is essential that they should be able to defend themselves properly.

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7
Q

What did Lord Woolf do regarding government schemes?

A

In ‘Access to Justice’ he discussed the issues surrounding funding of civil cases. (consultation document).

He stated under his reforms that the civil justice system needed a new structure and made 303 recommendations to try and rectify the situation. The Government responded by implementing these recommendations into Access to Justice Act 1999.

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8
Q

What was it like under the old legal scheme and what was it consolidated by? Criticisms?

A

Consolidated by the Legal Aid Act.

The cost of funding cases was very expensive. There was also criticism’s that advice was not available to those who actually needed it.

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9
Q

What happens under the Legal aid, Sentencing and Punishment of Offenders Act 2012? What operates the administration of legal aid?

A

Since April 2013 it has been operated by the Legal Aid Agency which comes under the umbrella of the Ministry of Justice.

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10
Q

Who is the Director of Legal Aid Casework and what does he/she do?

A

An independent civil servant and the decisions on granting legal aid will be made him him/her and his/her team.

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11
Q

How does the legal aid system work?

A

By the Government making contracts with providers of legal services so that the providers can do legal work and be paid by Government funds. Providers include law firms and non-profit organisations, such as the Citizens Advice Bureau, offering advice on legal matters.

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12
Q

Under previous legal aid schemes who was aid available for?

A

All those except which specifies excluded e.g. small claims.

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13
Q

Under the new system who is available for legal aid?

A

Under the new system,, the starting point is that legal aid is not available for civil cases unless the case falls into one of the categories specifically mentioned under the Act or other regulations. The types of cases included are:

o Those which involve children’s rights.
o Those involving a person’s freedom of liberty.

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14
Q

Where will the later be heard with legal aid?

A

The latter will also include cases which are being heard at the Mental Health Tribunal when deciding whether a person is to be continuously detained at a mental hospital. Claims for asylum are also funded by legal aid.

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15
Q

With the new law who are not eligible for legal aid?

A

The result of this change means that legal aid is no longer available for claims against medical negligence, trespass to the person and trespass to land and property.

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16
Q

What sets the criteria for funding civil cases?

A

The Act gives the Lord Chancellor the power to set criteria for making civil legal aid services available. It also sets out the factors the Lord Chancellor must consider when setting the criteria. These factors are set out in S. 10(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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17
Q

What is the criteria for civil funding?

A

 The likely cost of providing the services and the benefit which may be obtained by them;
 The availability of resources to provide the services;
 The importance for the individual of the matters in relation to which the services would be provided;
 The availability of other services, such as mediation;
 Where the services are sought by an individual in relation to a dispute, the individual’s prospect of success in the dispute; and
 The public interest.

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18
Q

Where does funding for legal aid come from? What issue arises?

A

The funding for legal aid comes from the government’s budget. This means that a set amount is made available each year. Also the amount set has to be considered against all other claims on the budget, such as hospitals, health care and education. As a result, the government cannot afford to make legal aid available to everyone.

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19
Q

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and S.10(3) what factors does the LC consider when setting the criteria?

A

 The likely cost The likely cost of providing the services and the benefit that could be obtained
 The availability of resources to provide the services
 The importance for the individual of the matters in relation to which the services would be provided
 The availability of other services, such as ADR
 Where the services are sought by an individual in relation to a dispute and the prospect of success
 The public interest

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20
Q

What is means testing?
When since?
What is it about?

A

Since 2012.
Person applying for gov funded advice or representation must prove cannot pay for own lawyer.
Assess income and capital.
If benefits like job seekers allowance- to quality presume disposable capital is below set level.
Gross income must be below set level.

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21
Q

Disposable income is Calculating starting starting with the gross income of an applicant and taking away the following:

A
  • Tax and national insurance
  • Housing costs
  • Childcare costs or maintenance paid for children
  • An allowance for each dependant
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22
Q

There is a minimum amount of disposable income below which the applicant does not have to pay and?

A

and contribution fees.

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23
Q

Monthly disposable income is graded into?

A

Bands.

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24
Q

Band A

A

1/4 of income in excess of the band

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25
Q

Band B

A

1/3 of income in excess of the band

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26
Q

Band C

A

1/2 of income in excess of the band

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26
Q

Band C

A

1/2 of income in excess of the band

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27
Q

What does disposable capital refer to?

A

Disposable capital refers to person’s assets, such as money in a bank and even a savings account, stocks and shares or even expensive jewellery and even home value.

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28
Q

In order to qualify for funding the max limit of disposable capital is?

A

8,000

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29
Q

What can happen if a person is just below 8,000 or over?

A

Even when a person overall capital is just below they may still be charged a contribution fee towards his case. if they have more than £8,000 they must use their own money to fund the legal case.

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30
Q

What is the limit for disposable capital?

A

3,000

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31
Q

The value of someone’s house if taken into account, how is this done?

A

The value of someone’s home is taken into account. This is done by deducting the amount of mortgage, but only up to £100,000, from the current value of the property. If the amount left after this exceeds £100,000 then the amount left is countered at disposable capital.

The rest is taken into assessment for funding and means tested. Deducting the amount of the houses mortgage does this, but only up to £100,000 then all the access is taken as disposable capital.

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32
Q

Legal services are provided by a wide range of people and organisations. Give examples?

A

Local solicitors are a main source of legal services, but there are also advice agencies, welfare associations and consumer protection groups who can offer help and advice. The Government intended to extend the range of bodies that provide legal services and to make sure that services were more evenly distributed through the country.

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33
Q

Legal Services Commission granted contracts to service providers. What happened? Give figures?

A

The number of contracts decreased steadily. At the start of 2000 there were about 5,000 solicitors’ firms with civil contracts. This was lower than the numbers who used to deal with legal aid cases under the previous system.

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34
Q

What happened under the Legal Aid Agency regarding contracts? Give a figure.

A

Under the Legal Aid Agency, the number has continued to decrease. BY 2015 only 1,820 firms had contracts. In addition, 231 not-for-profit agencies had contracts.

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35
Q

What is the problem with diminishing a number of solicitors and other agencies?

A

That many people have difficulty accessing public funding. It is more likely to cause problems in more rural areas, where people would be expected to travel long distances to access those firms who still have the legal aid contracts.

36
Q

What does the term Advice Deserts mean?

A

There is evidence that not enough legal service providers have contracts. The problems of ‘advice deserts’ was considered by the Constitutional Affairs Committee as long ago as 2004. In the evidence to the Committee, even the Legal Services Commission acknowledged that parts of England and Wales were not represented well enough in term of receiving funded legal services.

37
Q

What is the issue with Advice Deserts and and decrease in providers?

A

With the continued decrease in providers there are now even fewer legal service providers in certain areas. People who want help may have to travel long distances to find it. Even where there are enough legal services providers in an area, only people with very low levels of income and capital can qualify for help.

38
Q

Since 2013, following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), criminal legal aid services have been under? What do they do?

A

The legal aid agency in the Ministry of Justice. The agency makes contracts with solicitors and barristers to provide legal services to people charged with criminal offences which are paid from government funds.

39
Q

Explain legal advice at a police station?

A

Advice is available at any time to anyone detained at the police station who requests advice. This advice can be given over the telephone or by a lawyer attending in person. An adviser should have a Certificate of Accreditation, which is a certificate of competence to act on behalf of the suspect.

40
Q

Explain funding for legal representation?

A

The Legal Representation Scheme will pay for the solicitor’s fees for the preparation of the case before trial and for advocacy by a solicitor or a barrister during trial.

41
Q

How are lawyers paid?

A

Lawyers will be paid a fixed fee based on the type of offence charged, not the complexity of the case.

42
Q

In order to receive legal aid, the defendant must satisfy both the ….tests?

A

In order to receive legal aid, the defendant must satisfy both the ‘interests of justice test’ and the ‘means test’ applicable to the court the case will be tried in.

43
Q

What are the 5 interests of justice?

A
  1. Whether, if the matter arising in the proceedings is decided against him, the individual would be likely to lose his liberty or livelihood or suffer serious damage to his reputation.
  2. The case involves a consideration of a point of law or public importance.
  3. The individual is unable to understand the proceedings in court or to state his own case.
  4. The case may involve the tracing, interviewing of expert cross-examination of witnesses.
  5. It is in the interests of another person that the individual be represented. (Such as a rape case, murder or terrorist cases).
44
Q

There is also a strict means test in the magistrates’ court. This is often known as the ‘in and out’ scheme. Applicants are either:

A

 Eligible for legal funding – by passing the initial test or the full means test
 Ineligible for legal funding and are expected to pay for legal representation privately – because they fail to pass the initial test.

44
Q

There is also a strict means test in the magistrates’ court. This is often known as the ‘in and out’ scheme. Applicants are either:

A

 Eligible for legal funding – by passing the initial test or the full means test
 Ineligible for legal funding and are expected to pay for legal representation privately – because they fail to pass the initial test.

45
Q

Who automatically passes the MC test?

A

Those on income support are automatically eligible for funding. Defendants under the age of 16 and those ages under 18 and in full-time education automatically pass the test.

46
Q

What happens for the other applicants for MC means test?

A

For all other applicants, the test starts with a first stage simple means test that calculates on the gross annual income. If their income is too high they will not qualify for legal aid. If their income is below a certain level, they qualify. For those in the middle bracket, they are further means tests to calculate their disposable income and they are above that limit they will not qualify.

47
Q

The levels allowed are very low for the MC means test which means?

A

Therefore, about ¾ of all applicants are above this and do not qualify.

48
Q

What is the main difference for CC means testing?

A

The main difference from the Magistrates Courts is that there is no upper limit on disposable income. Most defendants can receive legal aid.

49
Q

In the CC who is legal aid free for and who is it not? Give figures.

A

It is free for those on lower income. Those with higher incomes have to pay towards legal aid. However, those with high income and with disposable income above £37,500 are ineligible and would have to pay privately.

50
Q

What are the rules about if someone pays privately?

A

When a person has to pay for funding privately, then the higher the income the higher the contribution they will have to pay towards their case each case has it maximum amount set by the type.

51
Q

If a person is found guilty in the CC what else can happen?

A

If a person is found guilty, they may also have to pay extra from his capital. If they are found not guilty the contributions made will normally be refunded.

52
Q

SEE SEPARATE SHEET FOR PROBLEMS!

A

<3

53
Q

Give a list of funding options for civil cases.

A

 ‘Before the event’ insurance;
 Private Funds (Traditional Retainer);
 Union and Association Funding;
 Conditional Fee Agreements;
 ‘After the event’ insurance;
 Damage Based Agreements; and
 Litigation Funding (Third Party Funding).

54
Q

What is ‘Before the event’ insurance?

A

People who own their own house or have a car will usually have an insurance policy to protect them against any risks of unexpected damage or loss. Within those insurance policies there will be an option to take out additional legal cover, which will cover the individual against and claims brought against them, e.g. in the event they were at fault for a road traffic accident and an injured party wishes to claim compensation. Legal expenses insurance is purchased to fund the costs of legal advice and/or the costs of bringing or defending a court case.

55
Q

What do many companies have for before the event?

A

Usually, within those insurance policies, the company will have their own legal departments which deal with any litigation claims. If a client has ‘before the event’ insurance, then it is likely that the company will wish to use their own legal team to deal with any of the claims.

56
Q

If an individual has already instructed a law firm to deal with their claim, the solicitor, or in some instances the client, will need to?

A

Contact the client’s insurance company to determine whether or not the insurance premium will cover the individual for their specific claim, if it doesn’t another method of funding will need to be discussed.

57
Q

PRIVATE FUNDS- TRADITIONAL RETAINER: The traditional method is for the client to pay the solicitor’s costs of conducting a case at an agreed hourly rate. What do The Solicitors’ Practice Rules require?

A

The Solicitors’ Practice Rules require solicitors to provide their clients with client care letters which should include at least basic information about charging rates and when bills are likely to be sent, and if possible, an estimate of the future costs.

58
Q

What does The Solicitors’ Code of Conduct require? What happens if it is breached?

A

The Solicitors’ Code of Conduct also requires solicitors to consider which of the various options on funding is best suited to the client’s circumstances. A breach of the costs provisions of the Solicitors’ Code of Conduct does not render the retainer illegal but can be considered in assessing the amount of costs payable.

59
Q

How will the traditional method be paid?

A

This traditional method of funding will be paid by the client from their own funds. The provider of the legal services will assess the individual’s capital and income to make sure that the client will be able to adhere to the contract and pay the monies owed on account.

60
Q

What may the provider of the legal services request? How will clients be billed?

A

The provider of the legal services, usually a solicitor, may also request that monies are paid on account before litigation begins so they have income at their disposal to deal with any disbursements and other work done by the provider. Clients will be billed on an interim basis, usually monthly or quarterly, for the work that has been completed.

61
Q

Who uses Union and Association funding?

A

clients who are in employment and who are bringing an action against their employers. If the employee is a member of a trade union organisation they will pay into that organisation.

62
Q

What services to trade unions give?

A

The trade union organisation will then provide services to the employee in relation to advice on employment matters, representation during disciplinary and grievance meetings and legal advice should the issue progress to court. The union will also offer free legal advice and work as a mediator with the employers.

63
Q

What services to trade unions give?

A

The trade union organisation will then provide services to the employee in relation to advice on employment matters, representation during disciplinary and grievance meetings and legal advice should the issue progress to court. The union will also offer free legal advice and work as a mediator with the employers.

64
Q

If the client has union representation and wishes to use this form funding what do organisations generally like to use?

A

If the client has union representation and wishes to use this form of funding, then it is likely that the trade union organisation would prefer to use their own in house legal team to deal with the claim.

65
Q

What happens if a client who uses trade union F instructs a solicitor?

A

the client has already instructed a solicitor, the solicitor would need to check whether the funding would allow for an outer firm could deal with the claim and still benefit from the funding. This is highly unlikely. The client would need to check prior to initiating litigation.

66
Q

Conditional Fee Agreements were developed in order to help people in this situation (paying costs and oppositions). What allowed them, and for what?

A

They were first allowed by S. 58 of the Courts and Legal Services Act 1990 in personal injury, insolvency and human rights cases. By 1998 the use of conditional fee agreements was extended to all civil cases apart from family cases.

66
Q

Conditional Fee Agreements were developed in order to help people in this situation (paying costs and oppositions). What allowed them, and for what?

A

They were first allowed by S. 58 of the Courts and Legal Services Act 1990 in personal injury, insolvency and human rights cases. By 1998 the use of conditional fee agreements was extended to all civil cases apart from family cases.

67
Q

What does the solicitor and client agree on for conditional fees?

A

The solicitor and the client will agree on the fee which would normally be charged for such a case.

68
Q

Conditional- what is a success fee?

A

. The agreement also states that solicitor will claim a ‘success fee’ if the case is won and what that fee will be. The success fee could be an uplift of up to 100% of the agreed normal fee.

69
Q

Under LASBO 2012 what can the LCA do to success fees?

A

Under the provisions of LASPO 2012, the Lord Chancellor will be able to set a limit on the maximum percentage for the success fee.

70
Q

How does the percentage work for success fees?

A

Most solicitors will include a cap on the success fee, usually 25% of the damages which are awarded to the successful claimant. If the solicitor does not win the case then the claimant pays nothing. As the success fee is an extra fee, this cannot be claimed from the other side upon successfully winning their case.

71
Q

What is after the event insurance?

A

Conditional Fee Agreements (CFAs) still carry the problem that if a client loses their case they will normally be ordered to pay the costs of the other side. To help protect against this it is possible to insure against losing a case. The insurance premium will have to be paid in advance of the case even if the case is eventually won.

72
Q

Explain how premiums cause problems for those who can’t afford it?

A

The premium cannot be claimed as part of the costs of the case from the other side either in the event that the client wins the case. Some insurance premiums can range up to £500, even over £1000, depending on the complexity of the case and the probability of success.

73
Q

How much can premiums be and what are they based upon?

A

Some insurance premiums can range up to £500, even over £1000, depending on the complexity of the case and the probability of success.

74
Q

Explain a way the CFA are useful!

A

Conditional Fee Agreements (CFAs) have helped thousands of people to bring cases to court and obtain justice. One area in which they have been particularly useful for claimants has been in defamation cases. Legal aid has never been available for such cases and only the rich could risk pursuing defamation claims. CFAs have enabled ordinary people to take such cases.

75
Q

Give reasons for why CFA are not always useful.

A

There are still problems with CFAs. Low-value claims are not attractive to lawyers who need to be able to make a profit for their legal business to survive. Lawyers are also more likely to take on cases where there is a very high chance of success.

76
Q

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 have made CFAs less attractive for two reasons, what are they?

A
  1. The cost of after the event insurance can no longer be claimed back from the defendant by a claimant who wins the case.
  2. Success Fees can no longer be claimed back from the defendant by a claimant who wins their case.

Two main points mean that a winning claimant will have to bear more of the cost of taking a case. As a result, a substantial proportion of the amount of damages they receive may well be used up by their costs.

77
Q

What are damaged based agreements or ‘contingency fee agreements? How do they differ from CFAs?

A

If the claimant wins their case, the solicitor will be paid by taking a percentage of the compensation that they are awarded.

78
Q

For Contingency Fee Agreements what is the max a solicitor can claim in PI and in employment?

A

. The maximum amount a solicitor can claim in a personal injury case is 25% of the overall compensation awarded to the claimant. If the claim is relating to an employment claim, the maximum a solicitor can claim is 35% of the overall award.

79
Q

In Contingency FA what can the claimant claim from their opponent?

A

The claimant will be able to claim from their opponent their solicitor’s costs that have incurred, but only up to the maximum that has had to be paid out of their own award.

79
Q

In Contingency FA what can the claimant claim from their opponent?

A

The claimant will be able to claim from their opponent their solicitor’s costs that have incurred, but only up to the maximum that has had to be paid out of their own award.

80
Q

Read a large example to show how DBA work.

A

In other words, say the claimant receives £5,000 in compensation arising from a personal injury claim, and under the terms of their DBA contract with their lawyer, the lawyer gets paid by taking 25% of your compensation award. In terms of claiming their lawyer’s costs from their opponent, they cannot simply claim the 25% amount they have paid to their lawyer. The claim for costs must be based on the actual amount of costs incurred by their lawyer. For example, say their lawyer’s actual costs amount to £800; this is the amount which is claimable rather than £1,250 (which is 25% of their compensation award of £5,000). Despite only recovering £800 from their opponent, they will still be liable to pay the remainder of their lawyer’s costs under their agreement with them. In this example, they would be liable to pay the difference of £450.00.

81
Q

What happens in DBA if the claimant lose? What can and can’t they have to pay?

A

If the claimant loses their claim they will not receive any award and they will not pay the solicitor’s costs. They may, however, still have to pay their opponent’s costs. The claimant may wish to take out after the event insurance to offset this risk (see above).

82
Q

Give a definition for litigation (3rd party funding).

A

Litigation funding, previously known as third-party funding, involves the provision of funds by individuals or companies who have no other connection with the litigation and who are not practicing lawyers.

83
Q

What might the litigation funder fund and what must they have?

A

The litigation funder might fund some or all of the client’s legal fees. The funder must have adequate financial resources to cover their funding liability for up to 36 months.

84
Q

Who generally uses litigation funding?

A

Litigation funding is primarily used for commercial cases of a large value. It is not generally thought appropriate for personal injury cases or non-monetary relief claims.

85
Q

What will the funder expect?

A

The funder will expect to make a profit from the litigation. This will usually include the money put forward plus 15%-45% of the damages recovered.

Law (34 decks)

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