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Legal Funding

The main piece of legislation dealing the public funding of legal cases, which set up the Legal Services Commission is the Access to Justice Act 1999.

Civil Cases - The Community Legal Service

The Community Legal Fund has a set budget each year, unlike in the past it is not demand led, i.e. once the budget for the year has been used no one else can have legal funding under the scheme.

The matters for which funding is available include;

The matters for which funding is NOT available include;

• Claims for personal injury, death or damage to property through negligence
• Defamation claims
• Claims for under £5,000
• The vast majority of tribunal hearings

The Funding Criteria

The following things are taken into consideration when deciding whether or not a person should get public money to fund their civil case;

• The likely cost of the funding and the benefit which will be obtained for the individual
• The importance of the matters involved to the individual
• The amount of money remaining in the Community Legal Fund budget
• The availability of other services such as conditional fee arrangements
• The likelihood of the individual winning their case
• The individual must satisfy the financial tests.  Their income and capital must be below strict limits in order to qualify for public funding

Conditional Fee Agreements

These are only used for civil cases.  Solicitors can agree to take no fee or a reduced fee if they lose and raise their fee by an agreed percentage if they win, up to a maximum of 100%

The solicitor will calculate the extra fee charged if they win, known as the uplift or success fee, on the basis of the size of the risk involved.  Therefore the greater the chances of the client winning the less the uplift will be.  The rule that the loser pays the winners costs still applies, so a individual using a conditional fee agreement will usually take out insurance to cover this risk.

The Access to Justice Act 1999 made some changes to conditional fee agreements to make them more popular and to promote their use.  The most important change is that the court can now order the losing party in a case to pay the other side's costs AND the uplift under any conditional fee agreement.  The Act also made conditional fee agreements available for all types of civil cases except medical negligence.

Advantages of Conditional Fee Agreements

• Cost to the state
• Wider access to justice
• Performance incentives
• Public acceptance
• Fairness to opponents
• Wider coverage

Disadvantages of Conditional Fee Agreements

• Unfair trials
• Insurance costs
• Financial involvement of solicitors
• Claimants misled
• Reluctance to take on difficult cases
• Misuse in defamation cases

Others Places to Seek Legal Advice

There are a number of not-for-profit organisations where individuals may seek legal advice.  These include;

• Law Centres
• Citizens' Advice Bureaux
• Charities, i.e. Shelter
• Local Authorities, i.e. Money Advice Centres
• The Internet
• Pro bono services

Criminal Cases - The Criminal Defence Service

Unlike with civil cases state funding for criminal cases continues to be on a demand-led basis.  There is no strict budget and all cases which fit the merits criteria will get funded.

The different levels of funding available are as follows;

• Advice & Assistance - this includes general advice from a solicitor, writing letters, obtaining a barrister's opinion, & preparing a written case. There is a means test for this level of funding and it does not cover representation in court.
• Advocacy Assistance - covers the cost of a solicitor preparing a case and the initial representation in certain proceedings in the Magistrates and Crown Courts.  There is no means test but there is a merits test.
• Representation - covers the cost of a solicitor preparing a defence and representing them in court.  May also be available for bail applications.  It can pay for the cost of a barrister (in the Crown Court) and the cost of an appeal.

 Public Defenders

Since May 2001 the LSC employs a number of criminal defence lawyers directly themselves.  These are known as Public Defenders.  There has been wide opposition to the introduction of Public Defenders.  The Bar Council and the Criminal Law Solicitors Association are concerned that lawyers who are employed directly by the state will find it impossible to be sufficiently independent to defend people charged with criminal offences.  Public Defenders have been used in the USA for many years and this has led to the criminal justice system there being geared towards administrative convenience and cost cutting.  The result of this is an over emphasis on plea bargaining and a large increase in uncontested criminal cases.  There are currently four pilot centres; Darlington, Cheltenham, Pontypridd and Swansea, where the Public Defender Service operates.

Duty Solicitor Schemes

  

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