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If you want justice then check your wallet first

Posted on 18th December 2015

I was pleased to be quoted in an article in The Independent on Sunday recently, highlighting the lack of funding alternatives available as legal aid cuts have left people unable to fight their corner effectively in court.

The article proved a powerful, if grim, reminder of the narrowing choices many of us now face.

How the average man or woman on the street will be affected by legal aid cuts will largely be dependent on the type of legal issue they have, for example, legal aid is no longer available for family cases involving child contact or in residence disputes but is still available in domestic violence cases where substantial evidence exists.

As a civil liberties lawyer I specialise in actions against the police and while there is legal aid funding for these cases there are fewer people who are eligible. In terms of the average man or woman on the street, the major change on 1st April 2013 when the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came into effect was that ATE insurance cover for these types of cases all but disappeared due to the fact that the premium was no longer recoverable from the defendant. What this means is that if you are mistreated by the police (which happens far more than you’d think) and want to seek redress but are ineligible for legal aid, your options are limited and so in most cases you will either have to pay all of your solicitor’s fees, represent yourself or, cobble together information via Citizens Advice, friends and family and the internet.

Since the changes took effect we’ve seen people with very strong cases simply not being able to bring their cases because they risk losing everything. Without the benefit of ATE or legal aid if a client were to fail in their case, they would also be liable to pay the other side’s costs, as well as cover their own.

While there are some options open to clients such as litigation funding and conditional fee agreements with ATE insurance if the claim includes a personal injury, choice is very limited and not without drawbacks. Litigation funding for individual cases is rare, this market is in its infancy and is much more geared towards corporates, while the cost of ATE premiums can be prohibitive for many claimants and there are very few companies still offering to insure these cases.

Claimants should however always check their house insurance policies as they might have legal expenses and some legal costs are covered for certain types of cases, such as personal injury or family disputes, but there are many exclusions and, you often don’t get to choose the lawyer you want. Otherwise, for the average man or woman legal representation will only be available if they’re lucky enough to have a rich benefactor, or bold enough to seek crowdfunding!

The threshold for qualifying for legal aid is now so stringent that even some people on benefits have to contribute to their own legal fees. This is staggering given the Government claims to have access to justice at the heart of its proposals. Generally, civil legal aid will only be available to those whose gross income is £2,657 or less (unless there are more than four dependent children) and their monthly disposable income (that is: earnings, less tax, national insurance and rent/mortgage payments (which are subject to a limit)) comes to less than £733 per month; and who do not have capital i.e. disposable assets/savings worth more than £8000. Partner’s means are aggregated. Equity in a property is assessed as capital.

However, in an attempt to provide a small “safety net” to a very limited number of the most vulnerable individuals, in section 10(3) of LASPO the government established the much criticised Exceptional Case Funding scheme. Individuals can apply for legal aid through the ECF scheme if their human rights or EU rights are at risk of being breached. However, obtaining legal aid through the scheme is far from easy, due to the many obstacles and restrictions put in place by the government. Prior to implementing the scheme, the government anticipated that some 5,000 to 7,000 applications would be made in a year; however the actual rate has been a fraction of that. In a landmark ruling handed down on 15 July 2015, in IS v The Director of Legal Aid Casework & Anor [2015], Justice Collins launched a comprehensive attack on the ECF scheme, stating:

“…[the ECF application forms are] insufficiently accessible…even for lawyers, the prescribed forms are far too complex and the information required is excessive. For those without any legal assistance, they are almost impossible to understand and to fill out satisfactorily.”

The other change since LASPO that I have felt particularly has been around fixed fees for expert witnesses, which have hugely affected our ability to instruct experts in legal aid claims. The fees are so low that it is difficult to find experts prepared to act. It also means that there is not a level playing field between clients in receipt of fixed-fee legal aid and people with access to other forms of funding, or between legally aided claimants and defendants, who can still instruct highly experienced experts charging far above the fixed fee.

Even the justice secretary Michael Gove has admitted that there is a two-tier justice system that is badly failing most people except the wealthy. Yet his so-called solution that the lawyers that have benefited the most from our legal system, such as corporate lawyers, should do more pro bono work is preposterous. This would create a system where lawyers specialising in advising large corporates on tax matters would offer free advice to a divorcing couple in a custody battle or a shipping lawyer bringing a human rights claim against the police. It is a ludicrous suggestion which would result in lawyers “dabbling” in areas of law where they have little knowledge and even less experience, this is the worst representation possible.

Susie Labinjoh is joint head of the civil liberties team at Hodge Jones & Allen.