Sunday, November 12, 2006

Legal aid? Problem sorted.

Thinking about the decline of legal aid while in the bath this morning (as you do), I thought "If I were in charge, what would I do?". Well here is my ‘from the bath’ solution, gratis, from someone who used to do legal aid but does it no longer.

Well, I think to start with, I would like to separate civil and criminal legal aid. From all I hear, it is the terribly expensive criminal trials which drain the legal aid funds. So if the civil stuff were separated out, it would show itself to be the inexpensive beast that it is.

Probably the best thing would be to have a fund. This could be used to underwrite legal costs, so solicitors could be certain of getting paid. Government could pay into the fund a specified amount, to cover those cases where the costs are not recovered from the other side. The fund could ‘earn money’ by taking on, once again, personal injury actions. The majority of these are successful so the insurers pay all the costs. However if the fund was the organization taking the risk, the ‘success fee’ currently paid to solicitors could be paid to the fund. No doubt insurance cover could be arranged, as now, to cover the risk of the claimant having to pay the other sides legal costs and experts fees.

So the fund could get income from the government (about the same as it pays now for civil stuff), interest from money held, success fees from civil claims which are successful, and would probably take a loss on most family cases. Housing cases – well some would be a cost but others, for example disrepair claims, could well bring in cash via the success fee. There would also have to be a statutory charge type arrangement to cover situations where a benefit is obtained but no costs are paid.

I have to say that I would prefer to see the fund administered by someone other than the Legal Services Commission – I think they are a horrendous organization (although with some very nice people working for them), realistically though I suppose we would probably get stuck with them. However as this is all imaginary anyway, let us say that the civil fund would be managed by a new organization – called something like the Civil Legal Costs Fund. Perhaps to be headed up by someone sensible from business, with a proven track record of running things efficiently.

The fund would have to be very carefully managed so its potential liability for costs (bearing in mind the proportion, statistically, of current cases which will not be a cost) did not exceed the amount of the fund. All cases would have to be assessed before being approved by the fund and strict limits applied, as with legal aid certificates.

Hopefully this system would be supported by solicitors. Although they would lose their success fee on PI cases, they would hopefully gain other work which would balance this out. And if they just did PI cases, then no doubt the option would remain to ignore the fund and carry on doing their own no win no fee agreements as now.

On reflection, and in an ideal world, I think I would prefer to see the scheme operate free of government altogether, i.e. be a private legal aid funding system. It would need a friendly multimillionaire to seed it by coughing up a few million, but it could be self funding thereafter. The advantage of being a private scheme is that it would be more likely to avoid the stultifying form filling and bureaucracy which inevitably accompanies any state funded system, and which makes them such a nightmare for all who work in them. Maybe it could start from a few firms and then gradually expand.

"But what about criminal legal aid?" I hear you ask, "You haven’t mentioned that!" Well I have never been a criminal practitioner so they will have to think up their own solution. Forcing government to think through the legal aid implications of new legislation would of course help.

However talking to a friend recently, he pointed out that government really needs the criminal practitioners because they are far, far cheaper than a state funded system would be. In a state funded system, the working time regulations would have to be followed strictly, whereas self employed solicitors can ignore them and just get on with the work. So they have the government over a barrel really. All they need to do is push this point home, which hopefully they are doing with their current go slows and strikes. Good luck to them.

So there you are. Problem sorted. What do you think?

But of course it is not really as easy as that.

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Contact said...

There are some very interesting ideas here, and I quite like the idea of PI success fees effectively supporting other areas. I think that Family makes up the largest porportion of the civil legal aid budget by quite some way, and that is irrecoverable, so the economics would be tricky. In fact, where costs are recoverable, the pay rates aren't bad, because they are usually at inter parte rates, not legal aid rates.

The problem is decent pay rates for the irrecoverable, but vital areas of work (Family, possession/eviction, welfare benefits, mental health, etc.), which make up a lot or most of the public demand.

Where the LSC are currently threatening to destroy the whole structure by insisting on a ratio of unprofitable work to (potentially) profitable work, your system has the merits of not following that path, but the pay rates for no costs cases and legal help advice cases remains an issue (otherwise, we'll all do inter parte costs cases and nothing else...). I have been posting on this, oh, endlessly recently.

But I agree strongly that the scheme needs a rethink, quite possibly including a separation from Criminal legal aid. Things are slowly reaching a crisis point.

Tessa said...

Possession claims should not cost (well not much), if only tenants being evicted under unsustainable claims are represented under the scheme. In the vast majority of these cases the tenant would win, and costs could be recovered from the landlord.

Contact said...

I don't think I'd sign up for that, if you are suggesting that only unsustainable possession claims are worthy of a funded defence. What of a viable disrepair counterclaim on admitted arrears? Costs may be for the Defendant here, but not all the time.

Or cases where housing benefit has caused or contributed to arrears. Being defended may not amount to an outright defence, but argument for a Postponed Posession Order, rather than outright. The best costs outcome will be no order.

And what of applications for stay of eviction? Unless the landlord has really messed up, again, no order for costs is the best outcome achievable. But these defendants still need representation.

You seem to be saying that defendants should only be represented where the claimant has an 'unsustainable case'. I'd have to say that this is an even higher success criterea than that of the LSC, where merely a 50-60% chance of the client keeping their home will get funding (keeping their home, not winning the case).