Abstract
The original idea of Legal Aid, introduced in 1949, was to assist people who were too poor to pay for a decent lawyer if they were injured and sought to recover damages, or who had been accused of a significant criminal offence and did not fancy their chances with a “dock brief”. But it has since been extended in scope to a range of situations, claims and disputes (as have “Human Rights” claims) that might have surprised its founders. It has burgeoned, often with small restraint on its mounting costs for the taxpayer, and caused unfairness to those at the other end of disputes who were not protected by insulation against costs that Legal Aid usually gives its clients. In a civil dispute, the test used to be if counsel considered that there was a reasonable chance of success for a hypothetical client of moderate means (later, the issue of proportionality was added). The test was in itself a pretty hypothetical one as in the real world most people of “moderate” means are frightened out of litigating if they risk paying just their own costs let alone those of the other side(s) as well, particularly if no prompt settlement is forthcoming and they can lose it all at the end of the day. The end of the day means when the appeals process is exhausted or their money has run out – put another way, when the roulette wheel of “Justice” has stopped turning and you find that you did not win.
And what happens to those of moderate means who find themselves at the other end of a dispute with a legally aided opponent? They are the ones who are disadvantaged because a legally aided client will have little to lose financially when it comes to paying costs if they lose and costs are not normally awarded against them or the Legal Aid Fund.
When else might a person of moderate means venture to law? To defend his/her reputation if we feel we have been libelled? Risky. More likely that person will, at great expense, be forced to defend himself or herself against a libel claim run by some well-funded company or group and there is no offer of Legal Aid in this case. Reform of our libel law is long overdue. But I digress. Issues of points of principle are dear to our hearts and will be dear to our purse if we try to defend them against a foe with deep pockets, and it is governments and insurance companies who have the most to gain from getting a judgment that will affect many other cases in the future and not just the wretched litigant or defendant caught in the dispute. Certainly, governments are not enthusiastic about using taxpayers' money to fund litigation against institutions that are paid for by the taxpayer – for example, granting Legal Aid to people so they can sue their local NHS hospital.
But again I digress – in recent years, curbs on Legal Aid hourly rates in the criminal and family law fields have caused anger and resentment among practitioners but they ain't seen nothing yet. Things look to get seriously worse for lawyers at the sharp end of a whole range of disputes and claims. The Government aims to make big cuts to the staggering £2 billion bill for Legal Aid over the next few years, and to achieve this the extent of Legal Aid will need to be savagely pruned to restrict the areas where it operates. It is reckoned that new means-testing will exclude about 500,000 potential clients who will no longer qualify for Legal Aid at all while others will be asked to make some (say £100) contribution or an increased contribution towards their legal fees and costs. If this causes them to draw back or think twice and prods them into trying to resolve the problem without going to law, then this may be no bad thing.
Legal Aid will no longer be routinely available to deal with debt, housing, employment issues, immigration, education, benefits claims and clinical negligence (save for a few very complex cases, e.g. involving a disabled claimant). The last on the list will not come as a big surprise as it has been threatened repeatedly since Legal Aid for personal injury claims was abolished some years ago in favour of insurance-funded claims or “no win, no fee” deals (of which more below).
Few people will feel sorry for lawyers whose caseloads and fee income are set to drop in the next few years. The plans are set out in two consultation papers put out by Kenneth Clarke QC, the Justice Secretary, and predict a 10% cut in fees for barristers doing civil and family work and a 42% drop in income and a proposed 12% reduction in fees for barristers doing legally aided criminal work, although in contrast to civil, family and asylum cases, the range of cases covered by criminal legal aid will not be reduced. Overall, lawyers' income in these fields looks likely to be reduced by up to £154 million over four years and caseloads by up to £275 million.
The second consultation paper outlines changes to the relatively recently introduced “no win, no fee” system that may have been a victim of its own success. It proposes that clients who sue defendants successfully under this type of deal will no longer be able to make the losing party pay all their costs, which currently include the “success fee” (that can increase costs by up to 100%) and is charged by the “no win, no fee” lawyers. The paper proposes the controversial (and I would argue unsatisfactory) solution of increasing all awards of damages by 10%, to cover the costs of fighting the action, but for all but the very largest claims that were settled before trial, this would leave the successful litigant a shortfall to be recouped from his damages.
How all these proposals will affect access to justice remains to be seen – how far they reduce access to the courts may be another matter.