8- Access to Justice and Funding

Question 1

What does access to justice and funding involve?

Answer 1

An open system of justice and being able to fund the costs of a case.

Problem of cost still remains a major obstacle.

 - Cost of civil cases in High Court may run into hundreds of thousands of pounds.
 - Even in cheaper County Court, cost will possibly be more than the amount of money recovered in damages. 
 - Additional risk in civil cases that loser has to pay winner’s costs.
 - In criminal cases, people might risk their liberty and it’s essential that they’re able to defend themselves properly.

Question 2

What are the different sources of legal advice?

Answer 2

1. Help Lines
2. Citizens Advice Bureaux
3. Law centres
4. Trade Unions
5. Schemes run by lawyers
6. Advice in criminal cases

Question 3

What are help lines?

Answer 3

Civil Legal Advice (CLA) is a government-funded scheme for providing advice.
It is possible to get telephone help from CLA for problems such as:
- Debt, if your home is at risk.
- Housing (ej: if you’re homeless or at risk of being evicted.)
- Domestic abuse.
- Family issues (ej: family mediation or if your child is being taken into care.)
- Special education needs.
- Discrimination.

Between July 2015 and June 2016 nearly 160,000 people rang the CLA telephone service.

Question 4

What is the Citizens Advice Bureaux?

Answer 4

First set up in 1939 and today give advice in over 2,500 locations throughout the country, with a bureau existing in most towns.

General advice free to anyone on a variety of issues mostly connected to social welfare problems and debt, but also give advice on some legal matters.

Can provide information on which local solicitors do legal aid work or give cheap or free initial interviews.

Many have arrangements under which solicitors may attend the bureau once a week or fortnight to give more qualified advice on legal matters.

Main areas that CABx help with are:

• entitlement to benefits
• debt problems
• consumer issues
• housing issues
• employment issues

Question 5

Why is the Citizens Advice Bureaux very important in providing legal advice?

Answer 5

In 2014-2015 they provided advice to 2.5 million people.

48% face-to-face contact, 45% on telephone and 7% email or webchat.

Question 6

What are law centres?

Answer 6

Offer a free, non-means- tested legal service to people in their area.

First law centre opened in North Kensington in 1970, and stated its aims as providing:
“a 1st class solicitor’s service to the people.”

Their aim is to provide free legal advice (and sometimes representation) in areas where there are few solicitors.

Many of their clients are disadvantaged.

In 2016 there were 44 law centres in operation.

Question 7

What characterises law centres?

Answer 7

Many of their clients are disadvantaged

Question 8

How are law centres funded?

Answer 8

Have always struggled to secure enough funding.

Cuts by local authorities in their budgets have meant the withdrawal or reduction of funding from this source.

Some law centres have closed.

They also receive funding from central government, but cuts have also been made to this funding.

Some centres have received funding from the National Lottery fund where the law centre is part of a community project.

Question 9

How do trade unions provide free legal advice?

Answer 9

Usually offer their members free legal advice for all work-related problems.

Many also offer free legal advice for other legal problems such as personal injury cases.

This help may be available even where the injury was not connected to work.

Unite, the biggest trade union in the country, gives its members free legal advice and also free legal representation for any personal injury case.

Question 10

How do schemes run by lawyers provide free legal advice?

Answer 10

Some solicitors offer a free half-hour first interview.

Local CABx will have a list of solicitors who offer this service.

Bar Pro Bono Unit

Question 11

What is the Bar Pro Bono Unit?

Answer 11

Unit situated in London staffed by volunteer barristers, gives free advice to those who cannot afford to pay it and cannot get legal aid.

Give advice on any area of law and will also, where necessary, represent the client in court proceedings.

Question 12

How is free legal advice given in criminal cases?

Answer 12

Anyone held as a suspect at a police station has the right to free legal advice.

There is a duty solicitor scheme available 24 hours a day.
Gov funded.

In 2016 advice was given to over 650,000 suspects at police stations. The advice may be by telephone or face to face.

Question 13

What are the advantages of legal aid in the UK?

Answer 13

1. Can help meet the costs of legal advice, family mediation and representation in a court or tribunal.
2. Designed to make the justice process available to anyone in the country, regardless of how much they earn.
3. Ensures key principles of a democratic society; that all are equal before the law and have the right to a fair trial.
   
   • Since Human Rights Act 1998 if a person cannot afford legal representation, this can undermine their right to a fair trial, a right which is protected under Article 6 of the Act.
4. Today legal aid is available for both criminal and civil cases.
5. Better than previous system of charitable donations
6. Duty solicitor schemes in police station available to all
7. Reform to the legal aid system came in 1999 when the Access to Justice Act was passed.
   - Designed to redraw the whole system of funding and regulating legal aid. The Act created the Legal Services Commission and gave it the power to reshape legal services. The Act allowed for Legal Aid, where one was financially eligible, in all criminal cases and all civil cases, except those specifically excluded.

Question 14

What are the disadvantages of legal aid in the UK?

Answer 14

1. Very expensive to fund
2. Although suspects are entitled to a lawyer, if they are taken to court or the case is civil it must be determined whether the individual is entitled to receive legal aid.
3. Legal aid has become increasingly available only to those whose income was at the lowest levels.
   - 2012- 600,000 of poorest people lost access to civil legal aid due to cuts
4. Means tested- whether an individual or family is eligible for government assistance or welfare, based upon whether the individual or family possesses the means to do without that help
5. ‘Cuts’ to Legal Aid continued to be a problem and a matter of political debate and reform.
6. ‘Sixty years after the birth of legal aid, 83% of the general public say they have little or no knowledge of the scheme, according to new research.’
7. 2012 the Legal Aid, Sentencing and Punishment of Offenders Act wanted to cut 2 billion legal aid bill by $350 million a year.
   - Act has completely removed funding for certain areas of civil law. This includes; private and family law and personal injury and divorce, one of the highest used areas of law.

Question 15

How can cases be privately funded?

Answer 15

1. Own resources
2. Insurance
3. Conditional fee agreements

Question 16

How are cases funded by one’s own resources?

Answer 16

Anyone who can afford it can pay for a solicitor and/or a barrister to deal with a legal matter.

Solicitors can be expensive. Average cost of a solicitor outside London is about $150/h.

For a big London firm of solicitors, charges are usually at least $600/h and can be as much as $1,000/h.

In civil cases, it’s possible to consult a barrister directly. This can be cheaper than using a solicitor because barristers do not have such high business expenses as solicitors.

Question 17

How can insurance fund a case?

Answer 17

Most motor insurance policies offer cover (for an additional small amount) for help with legal fees in cases arising from road accidents.

Policies for home insurance will offer cover for any legal claims arising such as a visitor being injured on the premises.

Also policies only for insurance against legal costs.
These can be ‘before the event’ , when there is no known legal claim.
‘After the event’ insurance, which is often used alongside a conditional fee agreement.

Question 18

What are the 2 types of insurance against legal costs?

Answer 18

1. Before the event- no known claim

2. After the event- often used alongside a conditional fee agreement

Question 19

Why were conditional fee agreements created?

Answer 19

1 of main problems of taking a case to court is that it’s difficult to estimate how long it will last or how much it will cost.

Problem for someone funding their own case. In addition, they might have to pay the costs of the other party.

In order to overcome these problems, a conditional fee agreement (CFA) can be used in all civil cases except family issues.
CFA cannot be used in criminal cases.

Question 20

Where can conditional fee agreements not be used?

Answer 20

Criminal cases

Question 21

How do conditional fee agreements work?

Answer 21

Solicitor and client agree on a fee that would normally be charged for such a case. Agreement also sets out what the solicitor’s success fee will be if he or she wins the case.

Many conditional fee agreements will be made on the basis that if the case is lost, the client pays nothing.
Because of this sort of agreement, scheme is often referred to as ‘no win, no fee’.

However, some solicitors may prefer to charge a lower level fee, for example half the normal fee, even if the case is lost.

If the case is won, client has to pay the normal fee plus the success fee.

Question 22

What are conditional fee agreements often referred to as?

Answer 22

No win, no fee

Question 23

What could the success fee in a conditional fee agreement be?

Answer 23

Could be up to 100% of the normal fee.

However, there is a ‘cap’ on the success fee in personal injuries cases which prevents it from being more than 25% of the damages (money) that the client wins as compensation.

This protects the client from having to pay more than s/he won as compensation.

Even so, it can mean that the client is left with very little of their damages.
A winning claimant cannot claim the success fee back from the losing defendant.

Question 24

What are the advantages of insurance if the case is lost?

Answer 24

Although clients will often not have to pay anything to their own lawyer if the case is lost, they will usually have to pay the costs of the other side.

This can leave clients with a very large bill to pay.
To help protect against this, it is possible to insure against the risk.

This type of insurance is called ‘after-the-event’ insurance.

If case is lost, the insurers will pay for the other side’s costs.

Question 25

What are the advantages of privately funding a case?

Answer 25

1. Insurance can prevent people facing large bills for small expenditure.
2. ‘No win, no fee’ if case is lost.
3. ‘After the event’ insurance prevents clients having to pay costs to other side if case is lost.

Question 26

What are the disadvantages of privately funding a case?

Answer 26

1. Expensive, 150£/h for solicitors.
2. No idea how long a case will last.
3. CFA- clients may be left with little (personal injury cases) of damages after 25% claimed by lawyer.

Question 27

Where does public funding of cases come from?

Answer 27

Gov’s budget.

A set amount is made available each year.

Amount set has to be considered against all the other claims on the budget, such as hospitals and health care and education.

Gov cannot afford to make legal aid available to everyone.

To qualify, there is a strict means test.

Question 28

What is the availability of legal aid?

Answer 28

Under previous legal aid systems, aid was available for all cases except for those specifically excluded.
Ex: Small claims.

Since 2013 (2012 the Legal Aid, Sentencing and Punishment of Offenders Act), starting point is that legal aid is not available for civil cases unless it is in a category specifically mentioned in the Act or other regulations.

Types of cases for which legal aid is available include those involving children’s rights and those involving liberty of the individual.

Breach of contract cases cannot get public funding, nor can claims in tort, such as claims for personal injury and trespass to the person, land or property.

Question 29

What is means testing?

Answer 29

Person applying for gov-funded advice or representation must show that they don’t have enough money to pay for their own lawyer.

To decide whether applicant is poor enough to qualify for gov-funded help, their income and capital are considered.

People receiving Income Support or Income-Based Job Seekers’ Allowance automatically qualify, assuming their disposable capital is below the set level.

For all other applicants, their gross income is considered first.

Question 30

How is eligibility for legal aid tested?

Answer 30

GROSS INCOME LIMIT

• Client’s gross monthly income should be £2,657 or less.
• If they have more than 4 child dependants, add £222 to this figure for the fifth child and each further child.

DISPOSABLE INCOME
- This limit is set at £733 per month.
- If person’s income is below the set amount per month, their disposable income has to be calculated by starting with their gross income and taking away:
tax and National Insurance
- housing costs
- childcare costs or maintenance paid for children
- an allowance for themselves and for each dependant.

• If the amount left after making all deductions is below a minimum level, the applicant doesn’t have to pay any contribution towards their funding.
• If amount left is above a maximum level, person will not qualify for any of the schemes provided by the Legal Aid Agency.
• Where disposable income is between the minimum and the maximum level, person applying for legal help has to pay a monthly contribution.
  
  • The more in excess of the minimum, the greater the amount of the contribution.

DISPOSABLE CAPITAL LIMIT

• This limit is set at £8,000 for all civil legal services except any relating to an immigration matter, which is capped at £3,000.
• It means the assets of the person, including money in a bank and savings, stocks and shares, antiques or expensive jewellery.
• If assets are above limit, client must finance their own case, although once they have spent their money in excess of £8,000, they can become eligible for funding.
• Even where their disposable capital is below the limit, they can still be asked to pay a contribution towards the case.
• Where a person owns a home, its value is taken into account in deciding the disposable capital.
• This means any person can be regarded as having too much disposable capital because of the value of their house, although in reality they might have no spare money.

DOMESTIC VIOLENCE AND FORCED MARRIAGE CASES
The Legal Aid Agency omits all upper eligibility limits if the client is applying for legal aid for an order for protection from domestic violence or forced marriage. However, a contribution may be required.

Question 31

What are the advantages of public funding?

Answer 31

1. Everyone on Income Support has access.
2. Published levels of income for means testing
3. Disposable income assessed on a sliding scale.

Question 32

What are the disadvantages of public funding?

Answer 32

1. Means tested to assess eligibility
2. Areas such as personal injury, property and land not included
3. Disposable capital assessed.
4. Disposable income assessed on sliding scale making contributions necessary.
5. Allows access to justice and protect the poorest in society

Question 33

What does D have to do to get public funding in criminal cases?

Answer 33

To get representation at court for a criminal case, D has to:

1. Qualify under the ‘interests of justice’ test.
2. Also a means test.

Question 34

What is the interests of justice test?

Answer 34

D only gets help with legal funding for representation in court if they can show that they come within at least 1 of the 5 ‘interests of justice’ factors:

1. Whether, if anything is decided against them, the individual would be likely to lose their liberty, livelihood or suffer serious damage to their reputation.
2. The case will involve consideration of a point of law.
3. Individual unable to understand proceedings in court or to state their own case.
4. Case may involve tracing, interviewing or expert cross-examination of witnesses.
5. It’s in the interests of another person that the individual is represented (such as rape case).

Question 35

How are Ds means tested in the MC?

Answer 35

As well as qualifying under ‘interests of justice’ test, there is strict means test in the Mag Court.

Often described as the ‘in or out’ scheme, were applicants are either:
- Eligible for legal aid (bc they pass the initial or full means test) or
- Ineligible (bc they fail the initial or full means test).
These therefore expected to pay for legal representation privately.

Question 36

How is the MC means tested often referred to as?

Answer 36

In or out scheme

Question 37

Who automatically qualify for public funding in the MC?

Answer 37

• On Income Support,
• Under 16 or
• Under 18 in full-time education
  Automatically pass the means test.

For everyone else, test starts with a 1st-stage simple means test calculated on gross annual income.

• If income too high, D doesn’t qualify for legal aid.
• If income below a certain level, they qualify.

Those in the middle bracket are further means tested to calculate their disposable income and if they are above the set limit, they will not qualify.

Levels allowed are very low, which means about ¾ of adults don’t qualify for legal aid in criminal cases in Mag Courts.

Question 38

How are Ds means tested in the CC?

Answer 38

Most D’s can receive legal aid.

• Free for those on low incomes.
• Those on higher incomes but below 37,000£ disposable income have to pay a contribution.
• Those whose disposable income is above 37,000£ are ineligible for legal aid and will have to pay privately for representation in court.
• If D has to pay, the higher their income, the higher the contribution they’ll pay.
• Max. amount they have to pay through contributions from their income set by type of case.

If:
D found guilty, they may also have to pay extra from their capital.
D found not guilty, any contributions paid will normally be refunded.

Question 39

What is the main difference between means testing in MC and CC?

Answer 39

There’s no upper limit on disposable income.

Question 40

What are the disadvantages of legal advice in criminal cases?

Answer 40

1. 24H cover is patchy.
2. Advice may be by telephone only.
3. Possible quality issues of advice at police station.
4. High cost of obtaining private advice.

Question 41

What are the disadvantages of representation in criminal cases?

Answer 41

1. High costs of private funding (barristers and solicitors.)
2. Low level of disposable capital- 75% adults are not eligible for legal aid.
3. D entitled to first hearing representation only.