Mackay has a case to answer
9 October 1996
The profession's legal aid problem is little short of a crisis, believes John Perry, and the best part of the blame can be laid at the door of the Lord Chancellor, Lord Mackay
Legal aid work is the biggest current political problem facing the Law Society and the public.
But it seems the Lord Chancellor took little notice of the stance of ex-Law Society president Martin Mears last year. And whether he will take any notice of the present president is also highly doubtful.
The average legal aid lawyer earns around £10 per hour for a 50-hour week. That is a figure incomprehensible to the lawyer from the big City firm who is often proud to announce a charging rate of £300 per hour and upwards.
I made my protest over legal aid four years ago when I refused to take part in any further proceedings in the Chertsey Magistrates Court until Lord Mackay had vacated the Woolsack. I also refused to take part in any further sessions of free will-making so long as the Lord Chancellor's name was associated with that voluntary work.
My point was that the Lord Chancellor should have publicly declared he would give up a 12th of his vast salary to equate to the one month which I and many other solicitors were devoting to churning out free wills for charity.
The legal aid bill has doubled over the last five years and the country is now having to pay £1.5 billion. This is far too high and the cost of providing justice could have been cut at a stroke had the Government introduced the no win, no fee principle in operation in the US for years.
At present, no win, no fee can only be operated on an enforceable basis in personal injury cases. I use the word "enforceable" because it can be used in other cases but the lawyer is unable to enforce the payment of monies against the client; I do operate the scheme outside personal injury cases. However, it does rest entirely upon the goodwill of both solicitor and client. I find clients are quite happy to work with me on that basis.
But as far as the general law is concerned, there are severe disadvantages. The main drawback to the no win, no fee principle is that it falls foul of the laws regarding champerty and maintenance. I see no reason why solicitors should not
finance legal proceedings indirectly, especially where this results in a member of the public obtaining access to justice which he or she would not otherwise receive.
The Lord Chancellor was chosen by Margaret Thatcher to penny pinch and protect the public purse. But he goes too far in suggesting poor applicants for legal aid should contribute £20 with each application. And I deplore the remark of one Conservative MP that solicitors might pay the £20 from their own pockets.
However, the penny-pinching aspects do not go hand-in-hand with the concept of justice and access to the law. I had three cases which were refused legal aid because the matter was "out of proportion to any benefit" involved. And I believed I was bound to win. They involved in one case an accident at Thorpe Park. Another case involved a neighbour driving a stake into the sewer with unfortunate results for the neighbour's back garden and kitchen. And the third case involved a car sold by the police at auction under their powers of sale. The original owner wrongfully seized the car back from my client. The police still retained the original proceeds of sale, some £2,000, which I believe my client was entitled to.
I successfully appealed all three refusals and was subsequently granted legal aid certificates. Eventually all three cases came to trial and I won on each occasion.
If the legal aid fund is to be capped and we are to have legal aid provided as "shrink-wrapped justice", then I foresee legal aid will not be available for the sort of cases I have outlined. In that event, it would be a denial of justice if the client was unable to pursue a court case because the solicitor was unable to operate a no win, no fee scheme.
The law on champerty and maintenance should be overturned immediately.
It seems that the Lord Chancellor is not a practical man. He came up with the lame excuse that a Government cannot introduce the pensions splitting for the benefit of wives in divorces because the computer required to make such adjustments will not be ready until the year 2000. And when the proposals for the no win, no fee principal were first introduced he came up with the suggestion that solicitors would be able to enhance their costs by a figure of only 10 per cent if they won.
Furthermore the disparity between solicitors who have franchises and those who do not of a mere 1 to 2 per cent is again trifling.
The bureaucracy involved in introducing a franchise is such a deterrent that it would need a balance of some 25 per cent at the very least before I could be persuaded to introduce the further red tape.
Moreover, what was the Lord Chancellor doing in Cabinet when Michael Heseltine mooted that access to the Industrial Tribunal should be made more difficult, and when the Home Secretary illegally introduced restrictions on the Criminal Injuries Compensation Board scheme so that
future earnings would not be taken into account and tried to usurp the function of judges in the sentencing process? On all these occasions, was the Lord Chancellor not consulted or was he simply not present?
The other thing I will never understand is why the salary of the Lord Chancellor is so much greater than that of the Prime Minister. I would put him way down the batting order.
John Perry is a partner at John Perry & Co.