Legal Funding Flashcards
What are the 3 main difficulties when it comes to legal funding?
1)Lack of Knowledge
most people are generally unaware that legal help is available
2)Fear
people can feel intimidated when dealing with lawyers due to their elitist image
3)Cost
Solicitors can charge £150 an hour for routine advice to over £600 in larger top city firms
What does the Rule of Law state that makes reference to legal funding?
(AV Dicey)
“equality before the law”
therefore it follows that society should also be served equally before the law
What does the Magna Carta state?
“to no-one shall we refuse or delay, right or justice”
What was Judge James Matthew state about access to justice?
“Justice is open to all, like the Ritz hotel”
What is the biggest issue within our justice system in regards to legal funding?
Legal rights are worthless if they cannot be accessed. Within the legal system there is a common problem known as “unmet legal need” with the legal aid suppose to help the poorest in society, there has been no adequate solution
With the court cost going up and eligibility for funding continuing to decrease, access to justice is becoming more of an aspiration than a reality
What did the 2016 report by Amnesty International “Cuts that hurt” state about the access to justice?
“…a tow tier justice system: open to those who can afford it, by increasingly closed to the poorest, most vulnerable and most in need of its protection”
According to a 2020 report by the legal Service Board how many adults have unmet legal need involving a dispute each year?
3.6 million adults
What was the first ever legal aid system introduced and by what act?
Introduced in 1949 as part of the Welfare State
Legal Aid and legal Advice Act 1949
which helped around 80% of citizens
What happened to legal funding in the 1970s?
Legal aid and expenditure relatively low, largely due to disadvantage people funding it difficult to access appropriate lawyers
July 1970- saw the first ever free Law centre open in London which offered pro-bono advice, and by the end of the year 26 similar centres had been established
=increased access to justice but also increased demand on the budget
-1979=79% of population eligible
What happened in the 1880’s regarding legal funding?
Became a political concern
1986 legal expenditure= £342 million per year
cuts were made by adjusting eligibility criteria
=63% of people now eligible
What happened in the 1990s regarding legal funding?
by 1995 annual cost of legal aid = over £1 billion
eligibility criteria got even tighter= only 47% of population now eligible
Access to Justice Act 1999 introduced a fixed budget and most civil areas of law were removed from the scope of legal aid including personal injury which accounted for around 60% of all civil cases
What happened to legal funding from 2000-2012?
2006 Carter report introduced fixed fees for all civil and criminal cases= lawyers pay fell dramatically
By 2007 only 27% of population were eligible for legal aid
2010 Jackson Report led to further cuts
What is our current system of legal aid?
set up under Legal Aid Sentencing and Punishment of Offenders 2012, the Legal aid agency came into force on 1st April 2013
This is the parent organisation to which the administration of legal aid is split: civil legal aid and criminal legal aid
What sections and act contain the civil legal aid system?
S.8-S.12 LASPO 2012
State some examples of the limited areas where civil legal aid is available?
Housing Issues
Discrimination (relating to the Equality Act 2010)
Domestic Violence
What areas no longer receive civil legal aid?
Personal Injury
Employment cases
Immigration
State some downfalls of the civil legal aid available?
-Capped budget (so if budget runs out there will be no legal aid offered even if you pass means and merit test)
-No longer a statutory entitlement to civil legal aid
Who provides the advice and assistance for legal civil aid?
Certain firms that have a contract with the legal aid agency and work is done for a fixed fee to provide the best “value for money”
According to the Law Gazette 19th Jan 2024 how many firms are contracted to provide civil legal aid?
1,246 solicitor firms which in the next 5 years 4 in 10 will quit legal aid resulting in a larger advice desert
Why is there a increasing lack of firms able to do civil legal aid?
Due to the unappealing pay, as there is simply no money to be made in providing legally aided services, most continue to offer civil legal aid services because of their own moral obligations
What is the name of the telephone service that provides civil legal advice?
Civil Legal Advice
-alternative to face to face advice which can be attractive to people due to the degree of anonymity
Who qualifies for civil legal aid?
two part test (under LASPO 2012 and Civil Legal Aid regulations 2013)
1) Means test (financial situation)
2) Merit test (how deserving the case is)
Who qualifies the means test?
Monthly income of less than £2657 gross (before deductions)
applicant must have less than £733 disposable income left
-If a person has disposable capital over £8000 they do not qualify
*An unemployed applicant in receipt of certain benefits automatically qualifies-known as “passporting”
Who qualifies the merit test?
Looks at whether a case is sufficiently worthy in relation to its prospects of success and whether it is reasonable to grant the applicant the money
-Prospect test (likely hood of success)
-Public interest test (any social benefit/ utility )
-reasonable Private Paying Individual test (looks at whether a private paying individual would be prepared to start the proceedings)
-Likely damage test (the quantum of damages that are likely to be awarded)
-Likely costs test (total cost likely to be incurred if not successful)
What was the Civil Justice Council’s comment in 2011 about the difficulties of being a litigant in person?
“it is hard to overstate just how difficult it can be- for the person, for the court and for the other parties- when someone represents themselves”
What did the Lord Justice state in the case of Wright?
“I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid”
What are civil alternatives are there if someone fails to qualify for legal aid?
- Other bodies such as Citizens Advice
However must popular is the No win, no fee agreement of either
1)Conditional Fee agreements
2) Damage based agreements
What are conditional fee agreements?
-Now available for all civil matters to help ease the restrictions and provide access to justice to clients who could not afford to pay privately
CFA’s are private agreements between the client and legal representative, introduced under Courts and legal Service Act 1990 and amended by LASPO 2012 as well as Conditional Fee Agreements Order 2013
If client loses=no fee
If client wins= lawyers usual rate plus success fee
Under S.44 LASPO, the losing side no longer has to pay the success fee or ATE insurance of winning claimant
In personal injury the fee is capped at 25% of the damages awarded
What are damaged based agreements?
Similar to CFA’s, the lawyer is not paid unless successful, if they are successful they are entitled to a percentage of the client’s damages
(maximum cap is at 25% personal injury and 50% for other civil cases)
State the advantages of Conditional Fee agreements and Damaged Based Agreements
-Provide Access to justice- “feel in the gap” for those who do not qualify for legal aid or cases no longer covered by aid
-Private agreement and no financial burden on the state
-Individuals benefit, individuals no longer put off taking legal action due to lawyers fees
-Once solicitor ahs taken on a “no win no fee” agreement they will work hard to win
-Trivial claims will be weeded out, as solicitors need to agree to take cases
State the disadvantages of conditional fee agreements and damages based agreements
-some solicitors may refuse to take on a case if there is a slim chance of winning or if the value of the case is not worth their time - not allowing for true access to justice
-capping fees payable to the lawyers have made CFA’s and DBA’s less inviting
-Some winning claimants left with very little winnings at the end
-CFAs and DBAs can be a little difficult to understand
-People can be subjected to high pressure sales tactics
What section of LASPO 2012 contains the criminal legal aid system?
s.13-s.22
By providing state funding to those being investigated or charged with a criminal offence a fundamental principle is being upheld: those facing a criminal trial should not be afraid that a lack of resources and proper representation might lead to wrongful conviction and thus risk breaching Article 6 right to a fair trial
Describe the criminal legal aid available
Demand led- no set budget
Who provides the advice and assistance for criminal legal aid?
Firms with contracts will be able to undertake criminal legal aid work
according to the Law Society, there are only 1080 firms left with a criminal legal aid contract, further supporting the concern about advice deserts
Lawyers are paid by fixe rates, not paid by the hour for the work done, this has promoted a huge resistance by professions regarding cuts to legal aid
e.g fixed fees for crown court trials lasting up to 10 days was originally introduced in 1997 and has never had an increase, when LASPO 2012 was introduced it cut these fixed fees by 17.5%
Following industrial action by criminal barristers in 2022 an increase of 15% was accepted
What help is available at the police station (duty solicitor)
S.58 Police and Criminal Evidence Act 1984 states that everyone is entitled to consult a solicitor in private, regardless of income with free advice being available 24/7
The Defence Solicitor Call centre will be called an over advice over the phone, provided by Criminal Defence Direct
Who qualifies for advocacy assistance and representation in regards to the means test?
Means Test- Suspect’s finances will be looked at, passporting is available for those under 18
Magistrate’s Court: where gross income after essentials deducted is £22,325 or more, D is not eligible for aid. With about 3/4 of adults not qualifying
Crown court: The Criminal Legal Aid (Contribution Order) Regulations 2013 provides that those with disposable annual income of £37,500 or more or assets over £30,000 will have to pay privately
-If above £33,980 but lower than £37,500 the suspect will have to contribute
-If acquitted the money is refunded
Who qualifies for advocacy assistance and representation in regards to the merits test?
Known as the “interest of justice” test
the more serious the charge/ consequences the more likely the case will qualify
If suspect says yes to one of the Widgery criteria
IT is likely I will lose my liberty
A substantial question of law may be involved
I may not be able to understand court proceedings
It is in the interest of another person that I am represented
Crown Court trials are deemed to automatically satisfy this test
State some alternatives if someone cannot get legal aid
-Citizen Advice (formed in 1939, free independent and confidential advice)
-Advice Uk (umbrella organisation for 700 indepdent community
