Legal Funding: Summary. History 1949 – First state funded legal aid scheme 1980s – System then developed into six different schemes Legal Aid Board –

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Presentation transcript:

Legal Funding: Summary

History 1949 – First state funded legal aid scheme 1980s – System then developed into six different schemes Legal Aid Board – administered the schemes (replaced) Cost of the system was escalating You will need to know what the 6 schemes before the AJA were and what the problems were – Access to Justice Act 1999, introduced major changes to the system.

Access to Justice Act 1999 Legal services Commission (LSC) Community Legal Service Criminal Defence Service Civil Criminal The LSC will make contracts with the providers of legal services so that they can do work for individuals and get paid by the Government.

The Community Legal Service (Civil) Funding: Demand led  fixed Funding code  Means & Merits Test Legal help, Representati on, Court, Family help & Mediation Certain cases removed (injury, defamation etc) Community Legal advice Services Contract required from the LSC

The Criminal Defence Service Funding: Demand led, no budget LSC employs defence lawyers (public defenders ) Duty solicitors (free) at Magistrates Court Criminal Defence Service Act 2006 Introduced means tests (MC & CC) Criminal Defence Service Direct Contract required from the LSC

Advantages to the AJA Reforms Better control over costs via civil’s fixed budget. Higher standards of work: Only firms with LSC contracts can provide work. Quality mark: reinforces high standards. Resources better allocated: Fixed budgets allow for correct allocation.

Disadvantages of the AJA Reforms Limited Access to Justice: only those with a LSC contract can offer services Cost cutting: priority funding given to criminal cases No legal aid for defamation cases - McLibel Two (Steel v UK 2005) Cases removed from legal aid: Personal injury, defamation and malice falsehood, business disputes. Concerns over public defenders: not independent if the government employs both the prosecution and defence. Poorer standards of work with reliance on contracted firms only. Huge costs of criminal cases.

Conditional Fee Agreements Introduced by: Courts & Legal services Act 1990 Access to Justice Act 1999 ‘No win no fee’ base Uplift/Success Fee Loser pays the winners costs with insurance policy Available for all cases except medical negligence.

Advantages & Disadvantages of CFA Widens access to justice: allows those ineligible for funding to bring a case. High risk: cases not accepted due to fear of losing No costs to the stateClaimants misled: not always accurate that they will pay no costs Financial incentive to winInsurance policy can be costly Widens coverage (includes defamation and tribunals) Pressure from insurance company to settle early Insurance requirement helps to mitigate against losing Should lawyers really be so involved in the financial outcome of a case. Very popular with the public

The future of legal funding Lord Carter’s review: Legal Aid: a market-based approach to reform Government paper: Legal Aid: a sustainable future Government paper: Best value Tendering for Criminal Defence Services (2007) Aims: to control costs and quality: fixed fees, fewer/larger contracts etc.

Lord Jackson’s report: ‘Review of Civil Litigation in Recommendations published in Legal Aid, Sentencing and Punishment of Offenders Act