Access To Justice
Public Funding of Legal Services
Summary
Access to justice concerns the idea that justice should be available to everyone, regardless of the ability to pay.
A system that ensures access to justice is therefore fundamental to the rule of law, and the idea that everyone is equal before the law.
However, legal advice and representation is expensive and someone has to pay for it. Fees in civil cases can run into tens or sometimes hundreds of thousands of pounds and on top of this, the loser may well be faced with having to pay the winner’s costs as well.
In criminal law, a persons liberty may be at stake, making access to high quality legal advice absolutely vital.
Alternative Sources of Legal Advice
Money provided by the state to pay the legal fees of those who could not otherwise afford it. AKA Legal Aid
Private Funding of Legal Serives
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Legal Aid Agency
Levels of Legal Aid
There are different levels of legal aid available, and applicants are given the level of assistance they require based on an assessment of their application.
Legal Help (Initial advice, Help with legal problems)
Help at Court (Solicitor or advisor, Speak on applicants behalf)
Family Mediation (Mediation in family disputes, e.g. separation or divorce cases)
Help with Mediation and General Family Help (Negotiation, Issuing legal orders in family disputes)
Legal Representation (Barrister or Solicitor)
Legal aid is available where:
-The case is serious
-The person cannot afford to pay legal fees
-The case is eligible e.g. domestic violence cases, or person at risk of losing home
Legal aid in civil cases
Government by Head of Civil Legal Aid
Legal Aid Solicitors
- Advice on the law
- Assistance in legal proceedings
- Assistance in enforcing decisions
- Representation in Court/ADR
LASPO 2012
Is available for:
Not available for:
- Welfare benefits
- Debt, housing
- Discrimination
- Education
- Asylum and immigration
- Family, children and domestic abuse
- Mental health and community care
- Trespass
- Employment, immigration or lands tribunals
- Negligence
- Contract
- Conveyancing
- Boundary Disputes
- Wills and probate
- Trust law
- Defamation
- Company law
- Business law
- Immigration interviews
- Claiming asylum
Director of legal aid agency will consider:
- Cost and benefit obtained
- Availability of the service
- Importance to the individual
- Nature and serious of case
- Chance of success
- Public interest
Means Testing
Legal Aid Agency
Legal aid services can be provided only by organisations which have a contract with the Legal Aid Agency (LAA). These include solicitors in practice, law centres and some citizens Advice Bureaux.
Criminal cases are also within the remit of the legal aid agency, which gives contracts to law firms to provide legal aid in the area.
The Public Defender Service, a department of the Legal Aid Agency, offers legally aided advice to criminal defendants.
Interests of Justice
The defendant must fall in one of five categories.
- D is likely to lose his liberty, livelihood, or suffer serious reputational damage.
- The case involves a point of law.
- D cannot understand the court proceedings, or state their own case.
- The case may require witnesses to be traced, interviewed, or cross-examined by an expert.
- It is in another person’s interests that D is represented.
Also considered: Financial Eligibility
Advantages and Disadvantages
Advantages
Legal aid allows some people with serious legal issues to obtain fee legal advice. It also ensures that some of the poorest members of society obtain legal representation. This helps to address the idea that everyone should be equal before the law, in accordance with the rule of law. Legal aid also contributes to procedural justice - the idea that we should have a fair system of justice as well as fair legal rules.
Disadvantages
Due to government cuts many legal aid firms have now been forced out of business as the rates paid for legal aid work are so low. This has created “advice deserts” where free legal advice is simply unavailable in certain areas. For example, prior to LASPO, which cut £350m from the legal aid budget, 85,000 people in the UK each year received advice on housing matters. this had fallen to 35,000 by 2017.
Surrey, Shropshire and Suffolk had no legal aid provider specialising in housing, and north west Wales only had one provider of housing legal aid for a population of more than 300,000 people. Even where there are enough providers, the Select Committee on Constitutional Affairs noted in 2014 that “the legal aid system is increasingly being restricted to those with no means at all...in many cases this may amount to a serious denial of access to justice”.
Private funding can be a daunting option as it can be hard to estimate the final cost of a case, particularly as the loser pays the winner’s costs. Solicitors’ fees can be very expensive with many firms charging upwards of £100 per hour, and city firms charging many times this amount. Alternatively, members of the public can contact a barrister directly under the Public Access Scheme, which could be cheaper due to the lower overheads incurred by barristers, but may require the client to file their own court documents.
One solution is for clients to take out a Conditional Fee Agreement, or CFA. These are available in all civil cases except family cases, but not in criminal cases. CFA’s work by the solicitor and client agreeing the fee that would normally be charged for such a case, as well as a success fee if the case is won. Usually the agreement is that, if the case is lost, no fee is to be paid. This is known as (no win no fee) arrangement. Success fees are usually capped at 25% of the damages that the client wins. As the loser cannot be required to pay the winner’s success fee, the claimant ends up having to pay it out of their damages.
Advantages and Disadvantages
Advantages
Disadvantages
CFA’s are helpful as they have enabled thousands of people to fund their cases and gain access to justice. Clients on a CFA will be confident of their solicitors commitment to the case, and hopeless cases will not be taken on, which saves court time.
Some clients may not be able to afford the insurance premiums required, as these cannot now be claimed back from the other side. There is also a concern that some clients may not understand the risks and liabilities of CFAs and may end up with “zero gain” at the end of their case. Further, solicitors on a CFA do not want to take on high-risk cases or low value claims, which can deny access to justice for those concerned.
- Citizens Advice Bureaux - Free legal advice on consumer law, housing, employment, benefits, and debt.
- 2,500 nationwide
- 1.95 million people accessed legal advice in 2017/18
- Premises in most towns
- Deals with limited areas of law
- Law Centres - Free legal advice regardless of income in disadvantaged areas.
- Can provide representation
- Welfare law, education, immigration
- 44 nationwide
- Not evenly distributed; many areas have no law centre
- Trade Unions - advice for members on employment issues
- Some trade unions offer other types of advice, e.g. Unite offers free legal representation for personal injury cases
- Only available for Union members