Legal Aid Reforms

The other day it was announced that the government was making vast changes to the system of Legal Aid in England and Wales. For anyone not familiar with the concept, legal aid is the system whereby people can have their legal costs covered by the state in certain types of case. The reforms, aimed at saving considerable amounts of taxpayer's money, affect many areas of law including; personal injury, immigration, divorce and certain contractual disputes.

Broadly speaking I think this is a good thing. At the end of the day, legal fees are usually high. It is a lot to ask of the over-burdened British taxpayer to fork out for someone else's legal costs when they could well ill-afford their own should they need legal advice.

Already in the legal world, there is a big drive towards alternative means of dispute resolution such as mediation and arbitration. This move could well provide a bit of a catalyst to to develop this further and save expensive court proceedings for the most complex of cases. One idea I had was to create as special court exclusively for those prepared to represent themselves for matters such as personal injury or contractual disputes. The idea would be that both parties would be self-represented (currently the system can provide for one party to be represented by a lawyer while the other isn't. This, in my opinion, is a recipe for injustice). The case would be presented directly to a judge who would listen to the facts, consider the legal the legal issues and then offer judgement. In cases of exceptional complexity, they could have authority to authorise legal aid in order that the case be heard in a higher court with legal representation.

Of course these cases would have to be carefully screened to avoid cranks, time-wasters and ensure 'the floodgates of litigation' remain closed. To me, this would ensure cases are judged on their facts and merit rather than some spurious technicality dreamed up by a smart-arsed lawyer. It would also, hopefully, speed up straight forward cases which, none the less, require judicial resolution.

Another option I did think about suggesting was legal aid offering a fixed fee rather than paying hourly rates for lawyers. My initial thoughts were that this would discourage lawyers from prevaricating and complicating the issue thus making the process quicker and cheaper. This is a valid argument however, if all cases of the same type attracted the same fees, I can foresee some less scrupulous and more business minded lawyers avoiding the complex cases in favour of taking on more simple cases which can be processed in higher volume but for the same money thus making a greater profit. A graduated fee scheme (as is the case in some aspects of criminal law) but this is potentially complex and administratively difficult.

Before what I'm saying gets completely misinterpreted, I'm not advocating everyone self-represents. Quite the opposite in fact. In my opinion, the creation of a court geared towards litigants in person would create a system that would provide greater services for those in greater need while keeping simple cases simple.

It is also worth noting that there are already several options available to control and mitigate the cost of legal representation. Aside from costs insurance, some law firms will consider taking the case for a fixed fee. This can be agreed at the start of proceedings. Another alternative is the conditional fee arrangement where no fee is charged if the case is lost but an additional 'success fee' is charged if the case is won. This usually comes out of any damages awarded. An obvious problem with this is that not all cases can be defined as won or lost. Divorce cases are an obvious example (and potentially, if both sides are going for a set outcome defined as success, fees could escalate as neither party would be willing to settle). Less obvious is what happens if  the case settles (although in practice, an agreement as to costs is usually reached regarding costs as part of any settlement).

Rather sportingly, the bar council, who regulate barristers in England and Wales, has provided some fairly detailed guidance on self-representation and the intricacies of various bits of the law. The overall message is "Don't but if you have to here's how to do it" in relation to self-representation. Then again, given the complexity that court proceedings usually involve, that's fair enough. Higher court proceedings require legal representation and guidance in order to navigate the process successfully. However the guide also offers advice on how to obtain free legal advice an make the most of any legal advice paid for.

There are a couple of areas where the reforms don't go quite far enough. The first is criminal law. Legal aid is generally available to many who find themselves in trouble with the police. This is exactly as it should be. But what about repeat offenders? Those that continually commit the same offence or the same type of offence? I'm not talking about one or two examples but those with tens of convictions after their name, all for the same offence or the same type of offence. Similarly those that continually get arrested for breaching explicit conditions of their sentence or bail. In both cases (for various reasons I won't go into unless you want me to) this isn't really the best use of public money.

My second reform is one I have suggested previously; the multi-skilling of lawyers. Currently, if you were to be involved in legal proceedings which end up in court, you are likely to be paying for at elase two lawyers. One is a solicitor who will take your initial instructions and manage the procedural elements of your case. The second is a barrister who will present your case in court. Depending on the complexity, you may well need advice from senior solicitors or a team of barristers representing you in court. The costs will spiral ever higher as all will be charging an hourly rate. My description of each is a bit vague and there are subtleties to both. There is also some cross over happening already. Some solicitors can appear in court and some barristers take direct instruction. Why not bit the bullet and train future lawyers to do both thus vastly reducing fees. Inevitably some will prefer certain aspects to others which would in turn lead to some specialists however their skills could be reserved for the most complex of cases.

So those are my thoughts on legal aid reform. I would be interested to hear anybody else's whether they live in Britain or they have some experience of the legal systems of other countries.

JR