A Legal Aid Board (LAB) consultation paper has confirmed fears, revealed in The Lawyer in December, that the Government's proposals to cap the legal aid budget will mean those who cannot afford to fund their own cases will be denied access to justice.
The Funding Code says that legal aid should only be forthcoming if “a prudent person” would risk their own money on the case.
It says no funding should be available where damages are much higher than costs, and conditional fee agreements (CFAs) should be more widely used.
In straightforward “money” disputes, cases must have a 60-80 per cent chance of success and expect damages of at least three times the likely costs.
Damages of at least four times the costs should be required if a case's chance of success is only 50-60 per cent.
The funding should however, be available for cases which have a wider public interest – such as test cases for establishing liability for harm caused by dangerous products.
Law Society president, Michael Mathews comments: “The Law Society's main fear over these proposals is that they are more about limiting the number of cases rather than actually targeting legal aid at deserving cases.”
Bar Council chairman, Dan Brennan QC welcomes the LAB's commitment to protecting public interest cases but adds: “The board should have regard to cases where there is real merit, but evidential or other difficulties mean they are hard to prove.
“If the Government puts an artificial cap on the ratio of costs to likely damages, then complex cases simply won't be taken up.”
Legal Action Group Policy Director, Vicki Chapman comments: “Where you have a cash-limited budget, legal aid becomes a discretionary benefit instead of an entitlement. Eventually the budget will run out and deserving cases will not get assistance.”
Richard Miller, the Legal Aid Practitioners Group chairman, says lawyers will have to overestimate costs because they will not be able to consider on the new forms that a case might be settled before it came to court thus incurring less costs.
The code's author, Colin Stutt, emphasises this is merely a consultation document, but insists the proposed rules would allow more flexibility.