End of an era for legal aid

“WE do not want to create a litigious society but one in which people respect one another's rights,” Lord Irvine's legal aid consultation paper, Access to Justice with Conditional Fees, pronounces.

It proposes the immediate extension of conditional fee funding to all cases except in criminal and family law and suggests that defendants who lose their cases should pay the other side's insurance premium and their lawyer's success fee.

The extension of conditional fees is combined with the withdrawal of legal aid from personal injury cases, with the exception of medical negligence. A variety of other areas which the Government believes “do not have sufficient priority to justify public funding”, will also lose legal aid cover.

They include matters affecting partnerships, inheritance, trusts, company and shareholders and boundary disputes between landowners.

The Government estimates that the first tranche of legal aid withdrawals will amount to 60 per cent of all claims.

The paper insists that medical negligence has been granted only a temporary reprieve, but the Government accepts that “the provision of insurance for such cases is still relatively new and developing, and… many solicitors' firms may not be financially structured to enable them to carry this work”.

In the meantime, medical negligence work will be delivered under contracts with the Legal Aid Board and given only to firms which have shown “sufficient competence” in the area.

Legal aid remains for housing claims, judicial reviews and civil actions against branches of the state such as the police, and for defendants in civil actions.

No threshold has been set for the legal aid merits test although provisions to toughen it up will be contained in a new Modernisation of Justice Bill pencilled in for inclusion in the Queen's Speech this autumn.

A senior official at the Lord Chancellor's Department (LCD) said lawyers would have to show the case was “winnable” and that the remedy compared sufficiently with the cost of the case. The Bill will also pave the way for an exclusive block contracting scheme for the delivery of all remaining legal aid.

Neither the Bar Council's plans for a Contingency Legal Aid Fund, nor the Law Society's proposed Conditional Legal Aid Fund, have been taken on board by the Government, on the grounds they would need start-up funding and would not sustain themselves financially unless all cases were brought within its scope.

However, the Government does state it would welcome attempts by either professional body to run such funds privately.

It is proposed that a transitional legal aid fund will exist until the Act comes into force, assisting litigants either in the investigative stage or where the costs of a conditional fee funded case have risen too “high” (£100,000-plus according to the consultation paper).

The fund will also be available to categories of cases removed from the scope of legal aid where a “significant” public interest element can be shown defined as cases affecting a wider group of people than those directly involved. It is not clear whether lawyers will have to put money back into the fund.

According to LCD officials this fund will act as a precursor to a public interest fund to be included in the forthcoming justice Act offering government assistance to cases of public interest.

The consultation period ends on 30 April, after which the Government will press ahead with its immediate plans.