1. Access to justice
and funding

2. Discussion Questions Q. What is legal aid? State-funded legal help.
Q. What is meant by the unmet need for legal services?
A person has a problem which could possibly be solved by going to law, but that person is not able to get the help he/ she needs from the system.

3. Discussion Questions
Q. For what reasons do you think someone would fail to get the legal help they need?
A person:
fails to see that their problem has legal implications
chooses not to pursue the case because of implications like cost, sees solicitors as unapproachable
does not know of the existence of a legal service or cannot find one who could help.

4. History of Legal Aid 1949 – 1st state-funded legal aid scheme
1980s – system had developed into 6 different schemes
Legal Aid Board – administered the schemes
Cost of the system escalating
1999 – Access to Justice Act 1999 – major changes to the system
2012 – Legal Aid, Sentencing and Punishment of Offenders Act 2012 – introduced further cuts to legal aid

5. Access to Justice Act 1999 Key changes brought in by the 1999 Act
Legal Aid Board replaced with Legal Services Commission
Community Legal Services Partnerships developed
Introduction of a quality mark
6 schemes replaced with 2 new schemes:
Community Legal Service
Criminal Defence Service

6. Legal Aid today
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has dramatically reduced the availability of civil legal aid and criminal legal aid is also being reduced
Legal aid is now administered by the Legal Aid Agency – who is in turn controlled by the Ministry of Justice

7. Civil legal aid
LASPO – civil legal is only available where the subject area is listed in Schedule 1
This concerns cases primarily that are directly concerned with an individual's human rights
Civil legal aid is no longer available for:
Medical negligence
Welfare benefits
Employment , consumer disputes
Education (except special needs cases)
Immigration
Housing cases
Private family cases do not qualify for legal aid unless the case involves domestic violence, child abduction or a forced marriage.

8. Civil legal aid Civil legal aid has been retained for:
Environmental law;
Asylum;
Clinical negligence cases (where the negligence occurred during the first few weeks of life)
Mental health and child welfare cases; and
Judicial review
Means tests for civil legal aid have been tightened
Civil Legal Advice (CLA) is a national telephone service and website that provides free legal advice on civil matters

9. Criminal legal aid
Still given on a demand-led basis, no set budget, all cases that fit the merits and means test criteria will be funded
The Legal Aid Agency funds directly the provision of criminal legal services, it employs public defenders and pays for duty solicitor schemes
Therefore criminal legal services are provided by both public and private lawyers
Contracts for criminal legal aid – there will be 2 different contract types
A set number of Duty Provider contracts awarded in each geographic area through competitive tendering
Unlimited number of Own Client Work contracts to any provider who satisfies the requirements

10. Criminal legal aid Means test
The Criminal Defence Service Act 2006 – reintroduced the means test for criminal cases in the magistrates court, Crown court cases had a means test reintroduced in 2010
LASPO 2012 – introduced a further financial eligibility threshold in the Crown Court - this will again restrict those eligible for legal aid
If the defendant is acquitted their contributions will be refunded

11. Public defenders
The Legal Aid Agency employs a number of criminal defence lawyers, known as public defenders
They are limited in number and there are no plans to expand the scheme

12. Criminal Defence direct
A telephone service called Criminal Defence Direct was set up in 2005 – it provides free telephone advice to people detained by the police for non-imprisonable offences

13. Problems with the legal aid system
Access to justice is often denied
Problems with the public defender scheme
The cost of criminal cases
Unfair trial if legal aid is refused
Too heavy reliance on private practice

14. Other Legal Service Providers
Other than solicitors and barristers what other agencies/ persons offer legal advice?
Law centres
Community Legal Advice Centres
Citizens’ Advice Bureaux
LAs
Trade Unions
Motoring organisations
Pro Bono clinics
Insurance

15. Conditional Fee Agreements
Courts & Legal Services Act 1990 & Access to Justice Act 1999
How do they work?
Solicitor can agree to take no fee, or a reduced fee if they lose, and raise their fee by an agreed percentage if they win (maximum of double usual fee)
Extra fee is called the ‘uplift’ or ‘success fee’
Loser pays winner’s costs and the uplift together with the insurance premium (if the court orders, and insurance has been taken out)
Access to Justice Act 1999 – conditional fee available for all cases except medical negligence

16. Conditional Fee Agreements -Problems
Coventry v Lawrence ( No 2 ) (2014) in this case the homeowners had won a claim for insurance against a small business operating a noisy speedway track near their home. The claim was worth £74,000, but the costs order against the business was £640,000. The Supreme Court suggested that cost arrangements for conditional fee agreements might breach a defendant’s right to a fair trial, since defendants who lose their case have to pay the lawyer’s success fee and after the event insurance of the winning party, which can be extremely costly, as in this case.

17. Conditional Fee Agreements -Problems
In Motto v Trafigura (2011) – this is the biggest costs case in legal history. Here lawyers brought a claim on behalf of 30,000 Africans who had suffered ill health when a contractor illegally dumped toxic waste in the sea near where they lived. They won the case and were awarded £30 million, which meant £ compensation for each person. The lawyers working under a conditional fee agreement charged 100% success fee which took their bill to over £100 million; the defendants challenged this and the bill was reduced by 40%.

18. Conditional fee agreements – after LASPO 2012
Since LASPO the success fee for conditional fee agreements is no longer recoverable from the losing party, except for privacy, defamation and insolvency claims
The client will now have to pay the uplift fee themselves even if they win their case
For personal injury cases the success fee is now capped at 25%
For all other cases the success fee can be 100% of the lawyer’s usual fee
The result is that conditional fee agreements will probably be used less

19. Contingency fee agreements – LASPO 2012
Under a contingency fee agreement lawyers receive a share of the successful claimant’s award of damages
‘Contingency fee’ comes from the fact that the payment of the lawyer is contingent on the claim being successful and damages being awarded
Before 2012 they were generally unlawful
LASPO now allows lawyers to enter into contingency fee agreements known as damages-based agreements with their clients
Lawyers are allowed to receive up to 25% of the damages for personal injury cases, 35% for employment cases and 50% for all other cases
If the defendant loses they pay the claimants’ costs, if the claimant loses each side bears their own costs

20. Advantages of contingency fee agreements
No cost to the state
Widens access to justice
Encourages lawyers to perform better as they have a financial interest in winning

21. Disadvantages of contingency fee agreements
Low take-up rate – they are not popular with lawyers
No win no fee, in reality means no win, pay anyway
Lawyers too heavily involved in the financial outcome
Risky, uncertain cases will not be taken on

22. Reforms
Lord Carter's review, Legal aid: a market-based approach to reform (2006)
Government paper, Legal Aid: a sustainable future(2006)
Recommendations included:
Procurement contracts and Price competitive tendering
Price competitive tendering received a lot of opposition and in 2014 the Government decided not to introduce it, instead they brought in Duty Provider work, though this is awarded through competitive tendering