Legal aid (now called public funding) was introduced after World War II to enable people who could not otherwise afford the services of lawyers to be provided with those services by the state. The system and costs grew enormously over the decades. The system underwent various restrictions and cutbacks during the late 1990s and was replaced by other systems like the Community Legal Service (2000) and the Criminal Defence Service (2001). The term ‘legal aid’ is still used as a descriptive, non-technical term to refer to state-funded services. It is run by the Legal Services Commission (LSC) and assists over two million people each year. The Legal Aid Agency spent £1.638 billion in 2015–16, compared with £1.695 billion in 2014–15 (Legal Aid Agency Annual Report 2015/16).
The importance of the system was neatly encapsulated by Tim Dutton, QC as Chairman of the Bar Council in 2008. He noted ((2008) NLJ 1031):
In much the same way that the National Health Service has been held in high regard, we should be proud that our legal aid system has been considered one of the best at providing justice for the most vulnerable and needy in our society.
Following legal aid reforms suggested by Lord Carter in his report, Legal Aid – A Market-based Approach to Reform, which was published on 13 July 2006, there were numerous changes made to the legal aid system. This chapter examines all the major elements of state-funded legal services. It also examines the alternative system of funding – conditional fee arrangements – under which payment to lawyers is made dependent on particular results.
In recent times, the extent of the service has been significantly reduced. In a powerful, lucid, and trenchant summary of recent changes, David Pannick QC, a crossbench member of the House of Lords, said this (‘Wanted – a legal aid fund that meets needs of ordinary citizens’, The Times, 10 December 2015):
When Sir Hartley Shawcross, the attorney-general, opened the second reading debate on the Legal Aid and Advice Bill in December 1948, he said it was a ‘charter’ for the ordinary citizen. It would ‘open the doors of the courts freely to all persons who may wish to avail themselves of British justice without regard to the question of their wealth or ability to pay’. He added that no longer would legal rights be ‘luxuries’ beyond people’s reach. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo) undermines those objectives.
Before Laspo, civil legal aid was available for most legal disputes, with specified exceptions, for those who satisfy the means-test criteria. Now civil legal aid is available only for specific types of legal dispute with a narrow (in practice, very narrow) ‘exceptional funding’ provision for excluded areas. So civil legal aid is no longer available for cases concerning, for example, employment, education (apart from special educational needs), immigration (except for detention), family law (apart from domestic violence and child abuse), and most welfare benefit claims. In addition, the means-test criteria have been tightened so that the ‘little man’ (or woman) referred to by Sir Hartley is most unlikely to qualify.
Lord Pannick QC concluded that the most promising option for reform is for the Ministry of Justice to promote a legal insurance scheme in which funds are provided for claims that have good prospects of success, to be paid for from the costs awarded in successful cases against the other party, plus a percentage of the sums recovered for claimants.
On 10 December 2015, in a debate in the House of Lords, Lord Lester of Herne Hill QC, a Liberal Democrat, reminded fellow peers that the debate coincided with the UN’s human rights day. He then said:
One fundamental human right is effective access to justice. It is a state’s duty to provide a system of legal aid that enables everyone, including the poor and not so rich, to have effective access to courts and tribunals.
In the same debate, Lord Howarth of Newport, a Labour peer who defected from the Conservatives in 1995, made an observation about the recent and substantial reductions in legal aid. He said:
In 1987, the Conservative government commenced a long attrition of public spending on legal aid. The Labour government more or less carried on the policy after 1997. But it was the coalition government that really took the axe to legal aid. The coalition parties had no mandate for this; their manifestos had not hinted at it.
Without access to legal professional advice and representation, a citizen is, in effect, cut adrift from civil society. Whether it would have been possible substantially to reduce public access to basic education or basic health care without an express mandate, as the coalition government did in respect of legal services, is an open question.
In 2015, 70 per cent of respondents to research conducted by Citizens Advice said they would not be able to afford a lawyer to advise on a problem or dispute. Only about 10 per cent were confident they could afford the cost of legal fees. Fewer than 40 per cent of respondents said the English legal system is working well for the entire population (‘Responsive justice: how citizens experience the justice system’, Citizens Advice, November 2015).
In 2006, the government indicated it was determined to curb the spiralling cost of legal aid expenditure, which was £1.5 billion in 1996–97 and rose to almost £2.1 billion in 2003/04, where it peaked before decreasing slightly over the next few years to around £2 billion a year (Lord Hunt, Hansard, 19 February 2008, col 134).
The proposals in a report of a review team under Lord Carter of Coles (Procurement of Criminal Defence Services: Market-based Reform, 2006) are being gradually implemented and are set to make substantial changes to the system. The system advocated by Carter is one where lawyers have to bid competitively to win contracts for doing criminal legal aid work. Under this new market-based model, all criminal legal aid lawyers are paid fixed fees – rather than being paid by time spent – and compete for contracts for work in police stations and courts.
The reforms prevent the highest-earning barristers being paid £1 million a year from legal aid, as used to be the case. Such a reorganisation could halve the number of the 2,500 legal aid firms and cause wide-scale mergers.
Most criminal trials are now covered by fixed fees, but fees in the long and most complex criminal trials are still the subject of negotiation between the government and the professional bodies.
There are several state-funded schemes to facilitate the provision of aid and advice. Each scheme has different rules relating to its scope, procedures for application and eligibility. Because of the importance of justice and access to the legal machinery, the idea behind legal aid is to give people who could otherwise not afford professional legal help the same services as more wealthy citizens. This raises important social, political and economic questions. Do poorer people deserve the same quality of legal advice as that which can be afforded by wealthy people? If so, how should such schemes be funded? The LSC, in its strategic plan published in April 2009 for the period 2009 to 2012, had a vision of ‘fair access to justice to the people who need it but can least afford it’.
The Access to Justice Act 1999 set up a new legal aid system and made provisions about rights to supply legal services (see Chapter 16), court procedure (see Chapter 9), magistrates and magistrates’ courts (see Chapter 12). The provisions in the Act form part of the wide-ranging programme of reforms to legal services and the courts, described in the government’s White Paper, Modernising Justice, published on 2 December 1998. Except where noted, the Act only affects England and Wales.
Part I of the 1999 Act established a Legal Services Commission (LSC) to maintain and develop the Community Legal Service (CLS) and the Criminal Defence Service (CDS), which replaced the Civil and Criminal Legal Aid schemes, respectively. The Act also enabled the Lord Chancellor to give the Commission orders, directions and guidance about how it should exercise its functions. The Community Legal Service Fund replaced the legal aid fund in civil and family cases.
On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. This Act introduced the Legal Aid Agency (LAA) following the abolition of the LSC.
The LAA publishes (on the website www.gov.uk) full details of all aspects of legal aid for the benefit of both providers and those requiring its services. The information is both detailed and regularly updated, including details of new contracts and application procedures.
Examples are the new 2015 Duty Provider Crime Contract details published on 10 July 2014 and updated on 27 November 2014. The information for applicants extended to 150 pages. Applicants had to apply by 29 January 2015 and the contract was due to commence on 1 October 2015. The LAA announced on 13 November 2015 that because of legal challenges, the existing contract will run from 11 January 2016 to 31 March 2016, with the new contract commencing the following day. However, if because of injunctions, a further extension is required, a backstop date of 10 January 2017 has been set. The LAA withdrew the 2015 contract and replaced it with the Standard Crime Contract 2017. The draft terms extend to 90 pages and specification 149 pages. On 10 June 2015 the Law Society Gazette reported that Shailesh Vara, the minister responsible for legal aid, proposed that the number of contracts for providing duty lawyers to advise suspects detained in police stations or defendants at magistrates’ courts would be reduced from 1,600 to 527.
As noted at 17.2 above, legal aid funding was granted on a case-by-case basis until the system of franchising was introduced in August 1994, where firms of solicitors meeting certain requirements were able to contract to undertake certain cases without prior approval, and claim funding on a more advantageous basis than previously. This franchise or ‘contract’ system has formed the basis of the legal aid scheme.
Funded services for all civil contract work fall under the headings of ‘controlled work’ and ‘licensed work’. In non-family cases there are three levels of service for controlled work: legal help, help at court and controlled legal representation, which includes legal representation before a mental health review tribunal or the Asylum and Immigration Tribunal. For controlled work the decision about whether to provide services in a particular case is made by the supplier, who is either a solicitor or a not-for-profit organisation, such as a law centre or Citizens’ Advice Bureau (discussed below, 17.9.2). They bid for a contract to provide legal services funded by the LSC to the Regional Legal Services Committees. Under the contract, the number of cases that may be undertaken by the suppliers is limited.
Licensed work is the equivalent of the case-by-case approval granted for all state-funded legal work prior to 1994 and all non-franchised work prior to the establishment of the LSC. Licensed work is administered through a certification process requiring the Commission’s initial approval of the cost, timing and scope of each case. Once the licence is granted, it covers all legal representation before the courts, except for controlled legal representation or services funded by individual case contracts that are managed by the Commission, such as very expensive cases referred to as ‘very high cost cases’ (VHCCs).
As with all legal aid matters, full details of VHCC contracts are published by the LAA.
The work that may be undertaken by a supplier, whether a solicitor or a not-for-profit organisation, covers a wide variety of categories. Civil legal aid work covers family, immigration, social welfare (which covers debt, employment, housing, community care and welfare benefits), mental health, personal injury, clinical disputes, consumer general contract, actions against police, public law and education. Criminal legal aid covers work in police stations, magistrates’ courts, Crown Courts, VHCCs and working within the criminal justice system.
The contract for civil work used to be carried out under a General Civil Contract under the CLS. However, this has now been replaced by a new standard contract, which is discussed below, at 17.3.3. Criminal work is now also covered by a new standard contract.
The LAA may terminate the contract for any reason at six months’ notice and the providers at three months’ notice. Key Performance Indicators (KPIs) are now part of the contract and failure to comply will be a breach of contract.
The coming into force of LASPO introduced new rules from 1 April 2013. An interim contract for Welfare Benefits operated until 31 October 2013.The 2013 Standard Civil Contract (Welfare Benefits) governs the provision of face-to-face Welfare Benefits Services from 1 November 2013.
The 2013 CLA Contract governs the provision of Community Legal Advice from 1 April 2013. CLA services will be provided primarily by telephone and also online and by other ‘remote’ means.
The 2013 CLA Contract covers remote advice in the categories of Family, Housing and Debt, Education and Discrimination law, as well as face-to-face services in Education and Discrimination law only. Providers may only carry out ‘Licensed Work’ in the Education and Discrimination categories.
From 1 April 2013, the 2013 Standard Civil Contract governs the provision of face-to-face legal aid services in the categories of Family, Immigration and Asylum, Housing and Debt.
Other categories of law are either not affected by LASPO to the extent that new contracts are required, in which case they will continue to be provided under the 2010 Standard Civil Contract (as amended), or will no longer be within the scope of legal aid provision after 1 April 2013.
The Criminal Legal Aid (Determinations by a Court and Choice of Representative) (Amendment) Regulations 2013 introduced new rules relating to ‘Selection of a Queen’s Counsel or multiple advocates’, which sets out the following conditions:
A contract may be awarded to allow a supplier to undertake work within one or more categories. The contract will state the categories and terms under which the supplier may provide legal advice and representation. The purpose of specifying categories in respect of civil contracts is to ensure an appropriate distribution of legal and advice services to meet demand in each region.
In order to assess demand and ensure that the right kind of services are available to meet the needs of a region, Community Legal Service Partnerships (CLSPs) were set up. The purpose of CLSPs was to provide a forum, in each local authority area, for the local authority and the LSC, and if possible other significant funders, to come together to co-ordinate funding and planning of local legal and advice services, to ensure that delivery of services better matches local needs. The LSC no longer facilitates CLSPs, and the LSC has asked each CLSP to consider whether it has a viable role as a provider forum.
If a law firm is awarded a contract to provide publicly funded legal advice through the LAA, the terms under which it will carry out the work will depend on how it provides the services and the type of legal aid given.
Family, immigration and asylum, housing and debt categories of work are governed by the standard civil contract 2013.
Welfare benefits work is governed by the standard civil contract (welfare benefits) contract 2013, except in the north and south-west and Wales, where the welfare benefits contract 2014 applies.
Community care and mental health categories are governed by the standard civil contract 2014.
Amendments to the 2013, 2014 and 2015 Standard Civil Contracts were made on 1 December 2014 and the 2013 CLA Specification was updated 26 May 2016.
Actions against the police, public law, clinical negligence, family mediation, and immigration removal centre categories are governed by the standard civil contract 2010.
This includes the provision of legal aid by telephone, online and other remote means. Family, housing and debt, education and discrimination categories of work are governed by the civil legal advice contract 2013.
All cases that would fall under criminal law are governed by the standard crime contract 2010 or through separate arrangements for Very High Cost Cases (VHCC).
A new set of reforms to criminal legal aid contracts due to be implemented in 2015–16 will now be superseded by the Standard Crime Contract 2017. However, many solicitors firms feared the reforms would entail an unwarranted restriction on who could participate in the duty legal aid rota, and that this would lead to a less diverse and competitive market. Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and the quality of professional service. In January 2016, faced with 99 separate legal challenges over the prospective procurement process, the Lord Chancellor decided not to introduce the contractual reforms, and to suspend, for a period of 12 months from 1 April 2016 a proposed fee cut for criminal legal aid work (Lord Chancellor and Secretary of State for Justice, Michael Gove MP, Written statement to Parliament Changes to criminal legal aid contracting, 28 January 2016).
The LAA periodically amends the contract terms of legal aid contracts to deal with changes in legislation or court rulings. The Civil Contract was amended on 17 and 31 July 2015 to reflect new legislation, including Care Act 2014 and Modern Slavery Act 2015. Changes to contract terms and details of any new tenders are available on the LAA website.
A new family contract commenced on 1 February 2012, but this ceased on 31 March 2013 and a new contract commenced the following day. The aim of the Unified Contract is to put not-for-profit advisers on the same footing as solicitors who carry out civil legal aid work and to create greater efficiency when working with providers. It is anticipated that one way this will be achieved is by requiring providers to work with the LAA by means of email to reduce administrative time and costs. In addition, providers will be required to meet certain standards that are contained in KPIs.
Another major change to this new system is the move away from issuing separate contracts to each office of a provider and instead issuing a contract to the whole organ-isation of the provider with each contract containing a schedule detailing the work that an individual office can undertake. The LAA will be able to stipulate a minimum and maximum number of cases that an individual office may start each year.
In order to be a supplier under either the CLS or the CDS, the solicitor or not-for-profit organisation must achieve the minimum standards under the respective Quality Marks. There are four kinds of Quality Mark and all contract holders must hold the SQM or MQM or LEXCEL. Barristers must hold QMB.
There are four Quality Marks applicable as follows.
As from 1 April 2013, the Legal Aid Agency (LAA) replaced the Legal Services Commission (s 38 of LASPO).
Legal aid has been one of the fastest growing parts of the public sector over the past 25 years, and expenditure has increased at almost 6 per cent per year in real terms, compared to similar increases in health and education expenditure of approximately 4 per cent and 2 per cent, respectively. At approximately £38 per head of the population, the LSC also spent more in England and Wales than is spent by any other jurisdiction for which comparative data are currently available.
The LAA produces highly detailed quarterly and annual statistics of all the legal aid work undertaken and the related costs. Examples of the information for 2015/16 are:
Since 1 April 2013, Community Legal Service has been known as Civil Legal Aid (CLA), and Community Legal Advice as Civil Legal Advice (CLAD).
The LAA as successor to the LSC provides both civil and criminal legal aid and advice in England and Wales utilising solicitors, barristers and not-for-profit organisations. The LAA’s main objectives are to:
Civil legal aid is currently carried out mainly under the 2013 Standard Civil Contract and 2010 Standard Civil Contracts. There is also provision for some family work that commenced before April 2013 to be carried out under the provisions of the 2012 Standard Civil Contract (Family and Housing).
The Community Legal Service (Financial) (Amendment) Regulations 2007 (which amend the Community Legal Service (Financial) Regulations 2000) set out the thresholds for financial eligibility for all applications for funding made on or after 8 April 2008. The test uses the basic concepts of ‘disposable income’, that is, income available to a person after deducting essential living expenses; and ‘disposable capital’, that is, the assets owned by a person after essential items like a home. If a person could sell his or her home, pay off the mortgage and still have more than £100,000 left (called ‘equity’), then he or she will not qualify for aid.
Certain services are free, regardless of financial resources, such as services consisting exclusively of the provision of general information about the law, legal system and availability of legal services, legal representation in some cases involving the Children Act 1989 and related proceedings, and representation at a mental health review tribunal. Some services are non-contributory and a client is either eligible or not, whereas others are contributory in accordance with a sliding scale, dependent on how much a client’s income or capital exceeds a given threshold. There is a cap amount over which a person is ineligible for legal aid. In summary, the financial eligibility amounts for applications are as follows:
There is a capital limit of £8,000 for all controlled legal representation, except legal representation in respect of immigration matters set out in Regulation 8(3) where it remains £3,000.
When assessing gross income and disposable income, state benefits under the Social Security Contributions and Benefits Act 1992 (Disability Living Allowance, Attendance Allowance, Constant Attendance Allowance, Invalid Care Allowance, Severe Disablement Allowance, Council Tax Benefit, Housing Benefit and any payment out of the social fund), back-to-work bonuses under the Jobseekers Act 1995, war and war widows’ pensions and fostering allowances are disregarded. Any person being paid the new Universal Credit will automatically be passported through to legal aid, although capital must be assessed. If a person receives financial support under ss 4 or 95 of the Immigration and Asylum Act 1999 from the National Asylum Support Service (NASS), they are passported through both income and capital tests for controlled work immigration and asylum matters only.
The only level of service assessed by the supplier for which contributions can be sought is Legal Representation in Specified Family Proceedings. However, provided that the client’s gross income is below the prescribed limit, clients with a disposable income of £315 or below per month will not need to pay any contributions from income, but may still have to pay a contribution from capital. A client with disposable income in excess of £315 and up to £733 per month will be liable to pay a monthly contribution of a proportion of the excess over £311, assessed in accordance with the following bands:
| Band | Monthly disposable income | Monthly contribution |
| A | £316-£465 | Quarter of income in excess of £311 |
| B | £466 - £616 | £38.50 + third of income in excess of £465 |
| C | £617 - £733 | £88.85 + half of income in excess of £616 |
A client whose disposable capital exceeds £3,000 is required to pay a contribution of either the capital exceeding that sum or the likely maximum costs of the funded service, whichever is the lesser.
For example, if disposable income is £480 per month, the contribution will be in Band B, the excess income is £15 (£480 – £465), the monthly contribution would therefore be £43.50 (£38.50 + £5 (a third of the excess income)). The LAA website has an online legal aid eligibility calculator to enable people to check whether they are likely to qualify financially.
Provided it is not disregarded as subject matter of the dispute, a client’s main or only dwelling in which he or she resides must be taken into account as capital, subject to the following rules:
The basis of funding was governed by s 8 of the Access to Justice Act 1999. This is now governed by LASPO. Under s 4 of the Act the Lord Chancellor can issue guidance and regulations.
The Civil Legal Aid (Merits Criteria) Regulations 2013 replace the previous Funding Code Criteria and the Civil Legal Aid (Procedures) Regulations 2012 replace the previous Funding Code Procedures.
The Lord Chancellor has issued a three-part funding guidance, which replaced the previous Funding Code Guidance. The three parts comprise general guidance, guidance for exceptional funding for inquests and exceptional funding for out-of-scope (non-inquest) cases.
Legal services were formerly governed by the Access to Justice Act 1999. This has now been superseded by LASPO. Schedule 1 of LASPO covers civil legal services. These range from the provision of basic information about the law and legal services to providing help towards preventing or resolving disputes and enforcing decisions that have been reached. The scheme encompasses advice, assistance and representation by lawyers (which have long been available under the legal aid scheme), and also the services of non-lawyers. It will extend to other types of service including, for example, mediation in family or civil cases where appropriate.
The Lord Chancellor must designate a civil servant as the Director of Legal Aid Casework. Under s 10 of LASPO the Director can make directions bringing cases that would be excluded within the provisions of the Act in exceptional circumstances.
Unlike the CLS budget, the LAA budget is not established by statute. Instead, the LAA, as a government agency of the Ministry of Justice, submits its budget to the Permanent Secretary (who is the Principal Accounting Officer of the department) and, once it is approved, is required to operate within it. The budget must be approved by a government minister.
Section 23 of LASPO extends the potential scope of financial conditions imposed on an assisted party in two ways, although there are no immediate plans to use either of these powers:
Section 26 of LASPO establishes limits on the liability of the person receiving funded services to pay costs to the unassisted party. The costs he or she must pay cannot go above what is ‘reasonable’ (s 26(1)), taking into account the financial resources of all parties. It also provides that regulations may specify the principles that are to be applied in determining the amount of any costs awarded against the party receiving funded services, and the circumstances in which a costs order may be enforced against the person receiving funded services.
Today, the regulations that limit the circumstances in which the costs order may be enforced against the person receiving funded services (or the liability of the Agency to meet any costs order on behalf of the person receiving funded services) are made on a more flexible basis. Previously, protection from costs was seen by governments to create too great an advantage in litigation for the person receiving legal aid.
The 2016 annual report of the LAA shows that the 2015/16 spend was £1.638 million.
Following the introduction of new contracting arrangements, there has been a decline in the number of solicitors’ firms providing legal aid services from 4,866 in January 2000 to 2,954 by March 2014, of which there were 1,435 (including 13 telephone providers) for civil work and 1,519 (including three telephone providers) for criminal (LAA Annual Report 2014 no later figures are available). Hugh Barrett, executive director for commissioning at the LAA, speaking to the Legal Aid Practitioners Group in October 2015, said the number of firms carrying out criminal legal aid work had fallen from 2,600 to 1,800. The reduction in the supplier base is partly a deliberate move away from reliance on a large number of generalist support firms towards a smaller number of specialist quality-assured providers. However, the reduction also reflects concern among some firms about the level of remuneration offered on civil legal aid work.
The Criminal Defence Service (CDS), known as Criminal Legal Aid (CRLA) from 1 April 2013, uses criminal legal aid to help people who are under investigation or facing criminal charges. By ensuring that people accused of crimes have access to legal advice and representation, the CRLA also helps the police and courts operate fairly and efficiently.
Criminal legal aid can offer:
The Criminal Defence Service Act 2006 changed the arrangements for the grant of public funding for representation in criminal proceedings in England and Wales. It provides for the power to grant rights to representation to be conferred on the Legal Services Commission (LSC), and now under the direction of the Legal Aid Agency (LAA) instead of that being done by a court. It introduces a test of financial eligibility for the grant of such funding and, in cases where eligibility exists, contributions based on means.
The creation of the Criminal Defence Service (CDS) was part of the government’s fundamental reform of the legal aid system, as set out in the Access to Justice Act 1999. The purpose of the CDS is to ensure access for individuals involved in criminal investigations or criminal proceedings to such advice, assistance and representation as the interests of justice require. The CDS was implemented and managed by the LSC, which was also created by the Access to Justice Act 1999. Solicitors are required to work within quality-assured contracts to perform CDS functions.
The LSC was responsible for funding legal representation under the Criminal Defence Service. This is now the responsibility of the LAA. However, under the old structure, it was the courts – and not the LSC – which were responsible for granting the right to have funding. Now the applications for funding are made centrally, not to a court.
The LSC awarded CDS contracts to quality-assured providers. At 31 March 2014, 1,516 solicitors’ offices and three telephone providers operated under a CDS contract (LAA Annual Report 2014), a net decrease of 4.78 per cent on 2012/13.
The ‘interests of justice’ test determines whether an applicant is entitled to a Representation Order based on the merits of the case. This is also known as the ‘Widgery Criteria’ (after the name of the judge in whose 1966 government report on legal aid they were originally formulated).
The applicant must indicate which of the following criteria they believe apply to their case:
If the applicant passes the ‘interests of justice’ test, he or she must also pass the means test to qualify for legal aid. The aid will be granted to an applicant who does not have the financial means to fund their own representation in a magistrates’ court.
The means test in the magistrates’ court establishes whether an applicant is financially eligible for legal aid. It only considers income and expenses – capital is not included.
Her Majesty’s Courts and Tribunals Service (HMCTS) staff apply the test once they receive a correctly completed application form.
So-called passported applicants are those individuals who automatically pass the means test (for example because of the state benefits they are on). These applicants will still need to pass the interests of justice test to qualify for legal aid. The initial means test assesses the applicant’s income and how this is spread between any partners and children.
A full means test is carried out if, through the initial means test, the applicant’s adjusted income is calculated (after April 2008) to be more than £12,475 and less than £22,325. It works out an applicant’s disposable income after deducting tax, maintenance and other annual costs from the gross annual income. There is also a complex means test for those who have complex financial circumstances. Hardship reviews can be carried out if an applicant can show they are genuinely unable to fund their own representation. A person may qualify for criminal legal aid if their annual disposable income exceeds £3,398 (£283.17 per month), but does not exceed £37,500, subject to making a contribution. This would be refunded if found not guilty. If found guilty and their capital exceeds £30,000, a contribution may be required.
In 2015/16, the public expenditure on the Criminal Defence Service was £889.5 million (LAA Annual Report 2016).
The Public Defender Service (PDS) was operated by the LSC and since 1 April 2013 has been run by the LAA. The LAA directly employs the PDS staff of solicitors, accredited representatives and administrators. The PDS provides independent advice, assistance and representation on criminal matters.
PDS lawyers are available 24 hours a day, seven days a week to:
All PDS employees must observe the code made under s 29 of LASPO.
The Public Defender Service aims to:
The Public Defender Service (PDS) is the first salaried criminal provider in England and Wales. There are currently four PDS offices: Cheltenham, Darlington, Pontypridd and Swansea.
In October 2009 the Ministry of Justice announced a review of the way the £2 billion legal aid budget was delivered. The resultant conclusions could see separate civil and criminal funds run by different bodies (C Baksi, Law Society Gazette, 14 October 2009). The review was established while legal aid lawyers warned that firms providing social welfare legal services were at risk of collapse because of the ‘artificial’ way work was being distributed by the Legal Services Commission. Lord Bach, the minister for legal aid, appointed Sir Ian Magee, a former permanent secretary at the Department for Constitutional Affairs, to explore ways of optimising value for money in the way legal aid was administered.
Bach told the Gazette he was ‘ruling nothing out and nothing in’. He said he would be surprised if the LSC ceased to exist, but said it could work alongside another body, with one administering the criminal budget and the other the civil budget. The two budgets could be ring-fenced.
The Law Society had warned that the LSC’s policy of capping the number of new social welfare cases or ‘matter starts’ that a firm can take on could cause some firms to collapse. Nicola Mackintosh of legal aid firm Mackintosh Duncan questioned why the LSC was ‘artificially limiting the number of clients who can get access to justice’ by allocating firms only a set number of new cases (Law Society Gazette, 14 October 2009, p 1).
On 1 April 2013 the LSC was replaced by the LAA.
There are over 1,500 not-for-profit advice agencies in England and Wales. They receive their funding – over £150 million a year in total – from many different sources, mainly local authorities, but also charities including the Big Lottery Fund, central government and the LAA. The provision of advice services is not spread consistently across the country. Some areas appear to have relatively high levels of both legal practitioners and voluntary outlets, while others have few or none. For example, the former LSC’s South East Area has one Citizens’ Advice Bureau per 46,000 people, but, in the East Midlands, 138,000 people share a Citizens’ Advice Bureau. The government believes that the fragmented nature of the advice sector obstructs effective planning and prevents local needs for legal advice and help from being met as rationally and fully as possible.
There are currently 45 Law Centres in England and Wales listed on the Law Centres Network’s website as at December 2016. These centres are staffed by salaried solicitors, trainee solicitors and non-lawyer experts in other areas like debt management. They are funded by local and central government and charity. They have ‘shop-front’ access and aim to be user-friendly and unintimidating. They are managed by committees and represented by the Law Centres’ Federation (LCF).
Law Centres take on individual cases, providing, for example advice on landlord and tenant matters and representing people at tribunals. Some centres also take on group work since quite often the problems of one client are part of a wider problem. This sort of work is controversial.
Since the introduction of LASPO, the Law Centres’ budgets have been cut and sometimes they are now forced to either turn people away or charge for services.
The Citizens Advice Bureaux (CABs) have been assisting people since 1939 and there are now 600 local CAB premises in England and Wales providing free, independent and impartial information and advice from over 2,250 locations (such as community centres, doctors’ surgeries and prisons). They deal with a high number of cases (over six million a year) and a very wide range of problems, many of which are legal problems. During 2015/16, bureaux advised 2.7 million clients with 6.2 million issues (CAB annual report 2016). According to the annual report 99.7% of people in England and Wales can access a local Citizens Advice within a 30 minute drive of where they live. There are, however, very few trained lawyers working for the CABs, but over 20,000 volunteer helpers. In keeping with the changing technology of the modern world, the CABs now offers an online help service through its website, providing independent advice on a range of topics such as money, family, consumer matters and civil rights.
In April 2012 the CABs took over Consumer Direct and in its first year dealt with 837,000 matters.
The CLS launched CLS Direct in July 2004, a website providing free advice on a range of matters similar to the CABs. The website offers topics of the month on the home page such as redundancy rights. It also contains an online calculator to assist people to determine whether they qualify for legal aid. Legal information leaflets and factsheets are also available on this site.
The Bar Council supports a Free Representation Unit for clients at a variety of tribunals for which legal aid is not available. Most of the representation is carried out by Bar students supported and advised by full-time caseworkers. A special Bar unit based in London was formed in 1996 through which more senior barristers provide representation. Some colleges and universities also offer advice. For example, the College of Law in London operates a free advice service in which vocational students give advice on such matters as personal injury cases and employment law.
Both barristers and solicitors operate ‘pro bono’ (from the Latin phrase pro bono publico, meaning ‘for the public good’) schemes under which legal work is done without charge or at reduced cost for members of the public ineligible for legal aid from the LSC but with limited means, or charitable and other non-profit-making organisations. Examples of pro bono activities include: solicitors attending advice sessions at Citizens Advice Bureaux or other free services; free advice to members of organisations, for example, trade union general advice schemes; secondment to Law Centres; and free advice to charitable organisations.
These are sometimes known as ‘no win, no fee’ agreements. They are not used for family or criminal matters, but can be used in many types of civil action. In a ‘no win, no fee’ agreement, a litigant’s solicitor will only be paid if the claim is successful. If so, the solicitor will also be entitled to an extra fee (known as a success fee). Both the basic fee and this extra fee are normally paid in whole or part by the losing party.
There are other incurred costs (such as court fees or the fee for a medical report). These are normally known as disbursements. Again, the losing party should pay all or part of these costs. A litigant is liable to pay his or her solicitor for any costs that the losing party is not ordered to pay.
If, under such an arrangement, a litigant’s claim fails, they will not have to pay their own solicitor, but they will still probably have to pay the costs of the successful party – the other side. That is something, however, against which they can take out insurance. They will also have to pay any other incurred costs (such as court fees or the fee for a medical report). These are normally known as disbursements. The insurance in these circumstances is known as ‘after the event’ insurance. The client may have to pay the insurance premium.
As part of the scheme to expose the provision of legal services to the full rigour of market forces, the then Lord Chancellor chose to devote an entire Green Paper in 1989 to Contingency Fees. Following a recommendation from the Civil Justice Review, the Paper had sought opinion on the funding of litigation on a contingent fee basis. This provides that litigation is funded by the claimant only if he or she wins, in which event the lawyer claims fees as a portion of the damages payable to the claimant. The response to this idea was largely hostile.
The traditional opposition to contingency fees in the English legal system was that they were ‘maintenance’ (the financial support of another’s litigation) and ‘champerty’ (taking a financial interest in another’s litigation). Champerty occurs when the person maintaining another takes as his reward a portion of the property in dispute. It taints an agreement with illegality and renders it void (for a discussion of the principle, see Grove-wood Holding plc v James Capel & Co Ltd (1995)). Section 14 of the Criminal Justice Act 1967 abolished maintenance and champerty as crimes and torts, but kept the rules making such arrangements improper for solicitors.
English litigation uses the Indemnity Rule, by which the loser pays the costs of the winner and thus puts him or her, more or less, in the position he or she enjoyed before the damage was done. Objectors to contingency fee agreements pointed out that such things were incompatible with the Indemnity Rule because, although the winner’s costs would be paid for them by the other side, they would still have to pay for their lawyer from their damages (calculated to put them in the position they would have enjoyed if no wrong had been done to them) so they would not really be ‘made whole’ by their award. The position is different in the United States, where contingency agreements are common in personal injury cases, because there each side bears its own costs.
It was further contended by objectors to the contingency fee that the legal aid system adequately catered for those who were too poor to afford an ordinary private action. Even if there were people who were just above the legal aid financial thresholds but still too poor to pay for an action, this should be dealt with simply by changing the threshold.
Section 58 of the Courts and Legal Services Act (CLSA) 1990 permitted the Lord Chancellor to introduce conditional fee arrangements, although these cannot apply to criminal cases, family cases or those involving children (s 58(10)). However, there are a number of different arrangements for conditional fees, so one issue to be addressed was the type of conditional fee system that should be applied in England and Wales. The Scottish model, for which initially there was reasonable support, is that of the ‘speculative fee’, whereby the solicitor can agree with their client that they would be paid their ordinary taxed costs only if they won the case. Two other forms of contingency fee were rejected during the consultation period as being unsuitable. The first was a restricted contingency fee system in which the fee payable in the event of a successful action would be a percentage of the damages, but where the actual levels of recovery would be governed by rules. The second was an unrestricted contingency arrangement, similarly based on a percentage of damages, but at uncontrolled levels. These plans were rejected because it was thought that to give the lawyer a stake in the claimant’s damages would be likely to create unacceptable temptations for the lawyer to behave unprofessionally in order to secure their fee.
The system eventually adopted is that where conditional fees are based on an ‘uplift’ from the level of fee the lawyer would normally charge for the sort of work in question. Originally, the maximum uplift was to be 20 per cent in order to induce lawyers to take on potentially difficult cases and to help finance lawyers’ unsuccessful conditional fee cases. This would have meant they could charge the fee that they would normally charge for a given type of case, plus an additional fifth.
In August 1993, after a long process of negotiation with the profession, Lord Mackay, the then Lord Chancellor, finally announced that he would allow the conditional fee to operate on a 100 per cent uplift. Thus, solicitors receive no fee if they lose a case, but double what they would normally charge if they win the case. The Law Society had campaigned vigorously against the proposed 20 per cent uplift, arguing that such risks as the ‘no win, no fee’ arrangement entailed would not be regarded as worth taking by many solicitors simply on the incentive that their fee for winning the case would be 20 per cent more than they would normally charge for such a case. The LCD originally decided to restrict the scheme to cases involving personal injury, insolvency and the European Court of Human Rights.
The system came into effect in June 1995. Such agreements are now legal, provided that they comply with any requirements imposed by the Lord Chancellor and are not ‘contentious business agreements’. These are defined under s 59 of the Solicitors Act 1974 as agreements between a solicitor and his or her client made in writing by which the solicitor is to be remunerated by a gross sum, or a salary, at agreed hourly rates or otherwise, and whether higher or lower than that at which he or she would normally be remunerated. A valid CFA must comply with the LCD requirements, be in writing, stating the percentage uplift payable if successful (and ‘must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor’ – s 58(4)(c) CLSA 1990 as amended by s 27 of the Access to Justice Act 1999). A CFA cannot be used if proceedings do not allow an enforceable CFA.
The right to use ‘no win, no fee’ agreements to pursue civil law claims was extended by the Conditional Fee Agreements Order 1998. The Order allowed lawyers to offer conditional fee agreements to their clients in all civil cases excluding family cases. Speaking in the House of Lords on 23 July 1988, the then Lord Chancellor, Lord Irvine, said:
These agreements will result in a huge expansion of access to justice. Today, only the very rich or the very poor can afford to litigate. In future, everyone with a really strong case will be able to secure his rights free of the fear of ruin if he loses. They will bring the majority of our people into access to justice.
Conditional fees have been the means by which at least several hundred thousand personal injury cases have been brought, and many, in all likelihood, would not have been brought but for the existence of conditional fees. The Order retains the old rule that the maximum uplift on the fees lawyers can charge is 100 per cent. Thus, a lawyer may take on a claim against an allegedly negligent employer whose carelessness has resulted in the client being injured. The lawyer, who might normally charge £2,000 for such a case, can say ‘I shall do this work for nothing if we lose, but £3,000 if we win’. In fact, as the price uplift can be up to 100 per cent of the normal fee, he or she can stipulate for up to £4,000 in this example. The Law Society has recommended an additional voluntary cap of 25 per cent of damages, and this has been widely accepted in practice.
The real problems continued to be:
The Access to Justice Act 1999 (ss 27–31), together with the Conditional Fee Agreements Regulations 2000 and the Collective Conditional Fee Agreements Regulations 2000, reformed the law relating to conditional fees to enable the court to order a losing party to pay, in addition to the other party’s normal legal costs, the uplift on the successful party’s lawyers’ fees and, in any case where a litigant has insured against facing an order for the other side’s costs, any premium paid by the successful party for that insurance. The intention was to:
In the first version of conditional fee arrangements, only people who expected to win money from their case could benefit from conditional fees. This was the only way that most people could afford to pay the success fee. There were also available insurance policies that could be taken out by someone contemplating litigation to cover the costs of the other party and the client’s own costs (including, if not a conditional fee case, a client’s solicitor’s fees) if the case was lost. However, it meant that a successful litigant would not receive all the money he or she was awarded, so the government made provision in the Access to Justice Act 1999 to make it possible for the winning party to recover the success fee and any insurance premium from the losing party.
The rules, which had become very complex for all using them, were simplified in 2005. The Conditional Fee Agreements Regulations 2000 and the Collective Conditional Fee Agreements Regulations 2000 were revoked by the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005/2305). The Access to Justice (Membership Organisation) Regulations 2000 were revoked and replaced by the simpler Access to Justice (Membership Organisation) Regulations 2005 (SI 2005/2306).
The removal of the unnecessary regulation was applied to all CFAs across the range of civil cases, including commercial, insolvency, environmental, intellectual property, human rights, privacy, defamation and injury.
Announcing the simplified arrangements, Parliamentary Under Secretary of State Baroness Ashton of Upholland said (10 August 2005):
Conditional fee agreements play a valuable role in helping people with valid claims obtain access to justice. For many consumers and businesses this provides the only means of obtaining appropriate redress. A regime that is complex and opaque puts the consumer at a disadvantage. Revoking the existing regulations will help make CFA agreements a simpler product and in particular will help consumers to better understand the agreements they enter into and the risks they could face in contemplating litigation. Consumer safeguards will be improved as responsibility for proper advice falls on the solicitor.
Regulation of solicitors involved in CFA cases is the responsibility of the Solicitors’ Regulation Authority. It is required to ensure that clients are fully informed about the strength of their case and prospects of success in clear, simple terms. This is designed to help to ensure that only well-founded claims proceed and benefit both claimants and defendants who will be spared the stress of avoidable court hearings.
Collective conditional fee agreements are designed specifically for mass providers and purchasers of legal services, such as trade unions, insurers or commercial organisations. A collective conditional fee agreement enables a trade union to enter into a single agreement with solicitors to govern the way in which cases for its members will be run and paid for; by simplifying the standard individual process, it reduces the cost of pursuing separate individual cases. The scheme also benefits commercial organisations which are able to enter collective conditional fee agreements to pursue or defend claims arising in the course of business.
For claimants, the advantages can be summarised as being:
For defendants there will be advantages too, as the contingency fee system will probably reduce the number of spurious claims. In a period where legal aid is being cut back so drastically, preventing so many people from going to law, this system can be seen as a way of preserving at least some limited access to the legal process. Losing parties will still be liable to pay the other side’s costs, so it will be unlikely that people will take action unless they consider they have a good chance of success.
The taxpayer can also be given the advantage in the form of a significant reduction in the funding of the legal aid system. Furthermore, practitioners who are competent to assess and willing to take the risks of litigation will arguably enjoy a better fee-paying basis, increased fee income and overall business, fewer reasons for delay and more satisfied clients with fewer complaints.
Consider two examples. First, a middle-class couple consult their solicitor about injuries received in a road accident. Their joint income and savings put them outside the legal aid scheme. The proposed litigation is beset with uncertainties as the other driver’s insurers have denied liability. The couple have to worry about their own expenses and the possibility under the Indemnity Rule of paying for the defendant’s costs. Second, a young man who has been injured at work wants to sue his employer. The case will turn on some difficult health and safety law on which there are currently conflicting decisions. He is eligible for legal aid, but he will have to make substantial contributions because of his level of income, and if his claim fails, he will have to pay the same sum again towards the expenses of his employers. In both cases, the prospective litigants might well drop any plan to litigate. Both cases, however, might proceed expeditiously if they found a lawyer to act on a no win, no fee basis.
Critics of the system argue that it encourages the sort of speculative actions that occur frequently in the United States, taken up by so-called ambulance-chasing lawyers. It can be argued that the system of contingency fees creates a conflict of interest between the lay client and the lawyer, with a consequential risk of exploitation of the client. Where a lawyer’s fee depends on the outcome of a case, there is a greater temptation for him to act unethically. When the Royal Commission on Legal Services (1979) rejected the idea of contingent fees, it stated that such a scheme might lead to undesirable practices by lawyers including:
the construction of evidence, the improper coaching of witnesses, the use of professionally partisan expert witnesses, especially medical witnesses, improper examination and cross-examination, groundless legal arguments designed to lead the courts into error and competitive touting.
If the case was won, the lawyer claimed a significant part of the damages, but there was also a real danger that lawyers would be pressured to settle too readily to avoid the costs of preparing for a trial that could be lost and therewith the fee. An example would be where an insurance company admits liability but contests the level of damages. The claimant might stand to get substantially higher compensation by contesting the case. Under the new system, however, their solicitor will have a strong interest in advising them to settle. A settlement would guarantee the solicitor’s costs and the agreed ‘mark-up’ (up to 100 per cent more than a normal fee for such work), both of which would be completely lost if the case was fought and lost. This would not occur outside of a conditional fee arrangement. Although the conventional system of payment was not without problems, as Walter Merricks, then of The Law Society, has stated:
when a lawyer is being paid by the hour, he may have a financial interest in encouraging his client to go on with an open-and-shut case, increasing his own fees.
The Law Society has argued that the system, if not properly regulated, could promote the sort of ‘ambulance chasing’ practised by American lawyers in the wake of the 1984 Bhopal disaster, in which over 2,500 people were killed by escaping gas from a US company (Union Carbide Corporation) plant in India. American lawyers flew out to act for victims and their relatives and some were reported to be taking fees of 50 per cent of the claimants’ damages.
It was argued by some that by allowing lawyers to double their normal fee for certain cases, the Lord Chancellor risked eliminating any benefit speculative fees might bring. If the successful client was not to be able to recover the uplift from the other side, they would have to fund it themselves out of the damages they had been awarded. In effect, this often resulted in their damages being halved. The uplift can now be recovered, subject to taxation (that is, court official approval), following changes made by the Access to Justice Act 1999.
It is not even clear that the main claim made for the system – that it increases access to the courts – is correct. The Scottish experience is that speculative cases do not exceed 1 per cent of the cases in the caseload of the Faculty of Advocates. One firm opponent of the system is Lord Justice Auld. He has argued that the system will eventually endanger the esteem in which lawyers are held by the public. He has doubted whether the scheme will produce greater commitment by lawyers to their cases: ‘There is a distinction to be drawn between the lawyer’s commitment to the case and his anxiety to recover his fees. The two do not always correspond.’
Since 1 April 2013, a successful client using a CFA has been obliged to pay any success fee and After-the-Event (ATE) insurance under ss 44 and 46 LASPO.
During 2014, the government’s schemes and policies to reduce legal aid provision were successfully challenged in the courts on a number of occasions. The latest was in December 2014 when the Court of Appeal ruled that people appealing against deportation had been unlawfully denied legal aid under too-restrictive government guidelines (R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others (2014)).
In the ruling, against Chris Grayling, the Lord Chancellor, three appeal judges upheld a High Court decision that the guidance he had issued was ‘unlawful and too restrictive’. As Justice Secretary or Lord Chancellor, Mr Grayling had lost seven such challenges in seven months by the end of 2014.
A High Court judge had ruled that the guidance ‘sets too high a threshold’ and ‘produces unfairness’ by denying publicly funded legal advice to applicants in ‘exceptional cases’. The Court of Appeal decision entailed that six cases in which legal aid had been refused would need to be reconsidered. The High Court had quashed refusals of civil legal aid by the director of legal aid casework, relying on the Lord Chancellor’s guidance, to grant legal aid to the six claimants, and the Court of Appeal upheld the decision of the High Court.
All the cases concerned the availability of legal aid in immigration cases under s 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which deals with exceptional funding applications. Mr Justice Collins said the cases involved EU nationals appealing against decisions that they should be deported following criminal convictions, an alleged victim of trafficking from Nigeria, and other cases involving the right to enter and remain in the UK.
Announcing the court’s decision, Lord Dyson said:
As is well known, the effect of LASPO was to limit the circumstances in which civil legal aid can be granted. Legal aid was withdrawn in a large number of types of case. But provision was made for exceptional case funding by section 10. The Lord Chancellor has issued guidance to which those responsible for deciding whether to grant exceptional case funding must have regard. The aim of section 10 and of the guidance is that legal aid should be provided where it is necessary to ensure that litigants have effective access to justice as required by the Convention on Human Rights and the EU Charter of Fundamental Freedoms
(Frances Gibb, ‘Legal aid guidance on deportation cases ruled unlawful by appeal court’, The Times, 15 December 2014).
Lord Dyson said the court concluded that the guidance ‘is unlawful because it mis-states the effect of the relevant jurisprudence’.
While the guidance identified correctly factors to be taken into account in deciding whether to grant exceptional funding, it neutralised their effect by wrongly stating that the threshold for funding was very high and that legal aid is required only in rare and extreme cases.
Lord Dyson stated:
It is also unlawful because – as is conceded by the Lord Chancellor – it wrongly states that there is nothing in the current case law which says that Article 8 of the convention requires the provision of legal aid in immigration proceedings.
The Court of Appeal ruled (para 45):
In our judgment, the cumulative effect of [the Lord Chancellor’s guidelines] is to misstate the effect of the ECtHR jurisprudence. As we have seen, the Guidance correctly identifies many of the particular factors that should be taken into account in deciding whether to make an exceptional case determination, but their effect is substantially neutralised by the strong steer given in the passages that we have highlighted. These passages send a clear signal to the caseworkers and the Director that the refusal of legal aid will amount to a breach of Article 6(1) only in rare and extreme cases. In our judgment, there are no statements in the case-law which support this signal.
It has been said by some critics of the Court of Appeal’s decision (see comments from lawyers under The Times article cited above) that the judges, in ruling the Lord Chancellor’s guidance unlawful, are acting merely to protect the economic interests of the legal firmament from which they arise. Notably, however, no clear legal reasoning is advanced to refute that of the Court of Appeal.
On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. This introduced the Legal Aid Agency (LAA) and abolished the LSC.
To many people the funding of legal services means legal aid. This effectively relates to two parties, the purchaser (being the person who requires legal assistance) and the seller (being the person who gives the legal advice). Both parties to the transaction have been seriously affected by the government’s progressive cutbacks. The person receiving the legal aid is faced with the qualifying earnings limits being frozen since April 2011. In addition, the areas of legal assistance a person can obtain have been reduced since April 2013. The solicitor or other legal professional is affected by reductions in fees payable by the LAA.
On 5 September 2013 the then Justice Secretary, Chris Grayling MP, announced in the House of Commons concessions to the government’s legal aid Consultation. This consultation received over 1,600 responses from interested legal parties. The main concessions agreed with The Law Society were the creation of two criminal contracts, one for own client work and one for duty solicitor work, and the scrapping of price competitive tendering. These concessions followed the earlier one announced in July reinstating the ability for a client to choose his own solicitor.
Legal aid fees have been cut by 17.5 per cent across the board in two stages – the first 8.75 per cent in 2014 and the second in July 2015. Barrister and solicitor advocates in the most serious criminal cases – very high costs cases – had their fees cut by 30 per cent. To mitigate the effect of some of the cuts, the ministry will introduce interim payments during long-running cases.
In response to a spokesperson for the Ministry of Justice regarding changes to legal aid, Andrew Langdon QC, writing in The Guardian (4 October 2013), challenged the assertion that at approximately £2 billion per annum England has one of the most expensive legal aid systems in the world.
He went on to state that:
Spending on our Criminal Justice System has fallen for a number of years. In the last five years it’s fallen from £1.12bn to £975m and the cost of the most expensive category of cases has halved (from £124m to £67m). As for our system being expensive compared to other countries – this line has been peddled before, though the Ministry knows it’s wrong. It’s wrong because our system is different from other countries – it’s ‘adversarial’. So our legal aid budget pays for things that in other countries are transferred to other budgets. The true and fair way of making the comparison – don’t take it from me, take it from the 2012 EC report on ‘Efficiency of Justice’ – shows that out of 14 European legal systems, we are tenth when you look at legal spend per inhabitant. Behind amongst others, Spain, Norway, Austria and Belgium. Behind Luxembourg and Switzerland – which is twice as expensive. This is not news to the Ministry. They know that. So why the spin? What’s wrong with telling it how it is?
This article concluded that it ‘was supported by Alistair MacDonald QC, Leader North Eastern Circuit; Gregory Bull QC, Leader Wales and Chester Circuit; Mark Wall QC, Leader Midlands Circuit; Andrew Langdon QC, Leader Western Circuit; Rick Pratt QC, Leader Northern Circuit; Sarah Forshaw QC, Leader South Eastern Circuit’.
Butler, J, ‘The funding drought’ (2009) 63 Litigation Funding 16–17
Dutton, T, ‘A public – private partnership’ (2008) 158 NLJ 1013
Gilg, J-Y, ‘Carolyn Regan: legal aid is the fourth plank of the welfare state’ (2009) 153(29) SJ 10
Morris, A, ‘Spiralling or stabilising? – the compensation culture and our propensity to claim damages for personal injury’ (2007) 70(3) MLR 349
Morris, P et al, Social Needs and Legal Action, 1973, Oxford: Martin Robertson
Prior, S, ‘Clinical negligence: the cost of claims’ (2007) 52 Personal Injury Law Journal 11
Rhode, D, Access to Justice, 2004, Oxford: OUP
Robins, J, ‘Are accident victims ill-served by “no win, no fee” agreements?’ (2008) 158 NLJ 1125
Rothwell, R, ‘Litigation funders face new complaints’ (2014) 4(3) Law Soc Gazette, 17 February
Smith, R, ‘Time to adjust’ (2009) 159 NLJ 1271
Underhill, N et al, ‘Law for free’ (2003) Counsel 14
www.gov.uk/government/organisations/legal-aid-agency
The Legal Aid Agency.
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