Can we fund justice?
Posted on 18th April 2016
Access to Justice is in crisis. There has been a resounding battle cry to try and save it for a decade or more, with the need for action getting only stronger since LASPO changes took effect in April 2013. At that point, legal aid for welfare benefit challenges virtually disappeared along with most private family law cases. Vulnerable people were left without recourse to a lawyer because they would not have the means to pay for one. We were promised a review after 3 years but it is yet to begin.
A review is urgently needed. The impact on justice post LASPO has been widely felt and judges in most levels of court have noted its devastating Lord Neuberger, the Supreme Court Justice, has recently spoken out about how access to justice is in crisis and has addressed “the vexed question of access to justice in an age of austerity.”
Various attempts have been made to keep costs down and therefore make funding legal action more affordable and predictable post LASPO, but with limited success. Is there a way of funding justice so that it is open to all?
What has been done so far?
Several measures have been introduced in the last few years to tightly control legal costs. The Jackson reforms outlawed success fees and ATE premiums being recovered from the losing side in cases where conditional fee agreements were in place. Jackson also brought in reforms to try and limit costs by budgeting costs on multi track cases.
But these have not on their own proved satisfactory. Other proposals have been suggested to further reduce costs or fund actions. But will these proposals really help access to justice? In particular, will they help vulnerable people, like the poor, the disabled and the elderly, access justice?
Fixed Costs to Fast Track
The first proposal is to introduce fixed costs to fast track cases. Whilst it has the benefit of certainty in what legal costs you may be liable for if you lose an action, it is a concern that it could lead to cases being cherry picked so that only the best cases which require the least work would be easily able to find representation.
More complex cases, or claims brought by or defended by vulnerable people who need more assistance, might find it more difficult to obtain representation. Not only are vulnerable clients more difficult to assist, but they are also likely to require more time be spent on a case to give them reassurance or to take instructions from them.
If such time spent cannot be recovered, even if reasonably incurred and proportionate given the nature of the proceedings, then representing such clients would not be profitable. Lawyers have to make a profit at the end of the day for their business to stay open. Challenging and rewarding work is worthwhile but it cannot be sustained unless it is subsidised by other more profitable work or it is profitable in its own right.
How are lawyers expected to deal with vulnerable clients that inherently require more attention and often require us to go that extra mile? Do they identify these clients at an early stage and sift them out or do they stop acting at a more advanced stage of the retainer so that we recoup some financial benefit? To remain profitable, those are the tough choices solicitors could be faced with.
Alternatively, there could be a shift with more junior fee earners with lower hourly rates conducting certain cases to avoid senior fee earners using up the fixed limits more quickly. We are concerned that if this is the inevitable result of fixed costs, then there will inevitably be compromises in the level of service provided to clients, which is concerning if the matter is of a complexity where ordinarily senior fee earners would be assisting with that type of case.
The Online Court
The second such change is the suggestion of an Online Court, proposed by LJ Briggs. His provisional report recommended introducing an online court to settle all disputes worth less than £25,000. The hope is that the system would be so accessible that it would mean that professional legal assistance would not be needed to litigate such cases.
It is essential that people who do not require legal advice and those with straightforward cases can access justice easily and possibly without the threat of legal costs from their opponent if they should lose their case. But the most vulnerable will not find this an easy path to navigate and sections of society who are too poor to have internet access, or who are not computer literate, will struggle to issue or defend such proceedings.
With sums of up to £25,000 possibly being fought over in such proceedings, it is clearly very significant claims that could ultimately be brought in this online court and wealthy litigators may well be able to instruct legal professionals to assist with claims, even if they could not recover the costs from their opponent. Any party who has professional representation is at an advantage against an unrepresented party, whether the court is online or in a building.
The idea is that the most vulnerable, or those with the most complex cases, would not fall within the online court, and would be instead reallocated to the traditional court after a provisional assessment has taken place. However it is suggested that this assessment will be done by a court officer, and not a judge so it is unclear how effective a filter this assessment will be. But as discussed above, such claims are likely to be the most complex and time intensive. If such individuals are not eligible for legal aid and they are not wealthy enough to pay for their own assistance, will their cases really be profitable enough to tempt solicitors to accept instructions if fixed costs are introduced?
The community legal fund
Is there anything that might fill this funding void? The worthy cases where legal aid is no longer available? LJ Jackson has recently advocated for a special fund – a community legal fund – which he says might fill the gap. Initially he says it would require funding from charities or a grant from the lottery but after a while he feels it would become self financing. His vision is an alternative funding model for legal cases – where worthwhile and good claims get funding through a crowdfunding model. The suggestion is not unwanted.
It is vital that important claims can be brought. It is vital that the law is not just accessible to the wealthy.
But we are concerned about why an alternative to legal aid needs to be born. And we are concerned that such a system would just leave a justification for legal aid to be withdrawn further because governments could argue alternative funding would be available through other means. How would decisions on funding be made? How could you be sure that funding really would be maintained? How could the quality of legal advice be safeguarded? How would lay people know where to go to get advice for areas funded in this way?
Of course, for all lawyers there is a need to show that justice is really accessible to all, because without it the honour and integrity of the court and our whole legal system is damaged. A damaged brand cannot be sold as successfully on a global scale as it currently is and legal services is most certainly one of the strongest brands the UK has to offer.
Yet, our legal system is undergoing a crisis – with the costs of accessing justice prohibitive for many. It is essential that the access to justice crisis, which even Supreme Court Justices acknowledge is a real problem, is addressed urgently before it is damaged further.
We remain concerned that access to justice will not be available to vulnerable groups unless legal aid is restored to the pre LASPO position and we urge the government to review LASPO as a matter of urgency.
Patrick Allen started a petition to restore funding to the pre LASPO position and we would urge you to sign it to ensure that affordable legal assistance is available to all.