28 October 1997
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The Middleton report benefits from the authors layman status, says John Malpas. LORD IRVINE succeeded in snubbing quite a few people at the Solicitors Annual Conference in Cardiff.
Lord Mackay, his predecessor as Lord Chancellor, was one of them although the episode will probably have amused rather than angered Lord Irvines fellow Scot.
The civil justice system should be accessible for everyone not just the very poor and the very rich, said Lord Irvine. Before I say more, I acknowledge two debts the system owes. The first is to Lord Woolf, for his two distinguished and historic reports. The second is to Sir Peter Middleton.
What about Lord Mackay? He was the person who commissioned the Woolf Inquiry and it was he who devised the block contracting scheme for legal aid, which Lord Irvine appears to have accepted practically lock, stock and barrel.
In fact, a cynic could argue that Middletons report has performed the rather useful function for Lord Irvine of distancing the reforms he outlined in Cardiff from Lord Mackays own plans.
Much of Middletons report reads like rather a hurried re-hash of Lord Woolfs inquiry report and Lord Mackays legal aid white paper.
But Middletons work does have its strengths. He is, for one thing, refreshingly direct. The fact that he is not a lawyer makes his insights into the legal profession particularly blunt. His layman status also makes it easier for him to look at legal affairs from the perspective of the client.
The resolution of a dispute is inevitably a risky business, he says. Those involved need to have as much knowledge as possible about the risks they are taking the likely costs and benefits, the probability of success, and the way these change at difference stages in the case.
It is, in my view, the responsibility of the professionals in the system especially the lawyers to give this advice explicitly. The more they share the financial consequences of this judgement, the more accurate it is likely to be.
Middleton approves of most of the reforms advocated by Lord Woolf and Lord Mackay. He particularly likes the idea of Woolfs fast track system, under which the management of cases below u10,000 (or u15,000 as Lord Irvine wants) is to be handed to the judges.
And, not surprisingly when you consider that Middleton used to be permanent secretary at the Treasury, he wholly approves of fixed fees. But he believes that it might be too bureaucratic for the State to fix them, and has devised a new plan instead.
He thinks that the lawyers for both sides should set their fees in advance. If costs are awarded, the winner should get the lower of the two figures agreed by the two parties. That, he says, would encourage the lawyers to charge competitive fees.
However, although Middleton wants a fixed-cost regime, he wants its introduction to be delayed to allow Woolfs fast- track stream to be bedded down in the courts. And, in a move that will delight the legal profession, he argues that the fast-track system should be piloted.
He is just as positive about Lord Mackays proposals.
He says legal aid must be targeted at those who need it most: the poor. To do that, the Government has to have tighter control over resources. It can do that, he says, by signing block contracts with law firms who fix fees in advance.
According to Middleton, contracting can improve value for money in terms of both quality and price. He wants all contracts to specify quality standards. The Legal Aid Board (LAB) would then have the role of monitoring law firms to make sure they are meeting them, and identifying lawyers who might be cutting corners.
He would like the LAB to offer an element of success fees, so that lawyers have to bear at least some of the cost of unsuccessful cases.
Lord Irvine is advocating a tightening up of the merits test that the LAB conducts for clients seeking legal aid. He wants cases to go ahead only if there is a 75 per cent or greater chance of success.
But Middleton wants a flexible threshold, so that, for example, lower-priority categories of cases require a greater chance of success before they qualified for legal aid. Unlike Lord Mackay, who wanted solicitors under contract to apply the merits test, he wants the LAB to continue applying the merits test at least until it is known how well the LAB can measure the quality of legal advice.
Intriguingly in a section on the broader context he holds out the prospect of a kind of quasi-public defender system: a network of salaried legal advisers giving basic information and even acting as a referral service to law firms or other legal services providers. He says that ultimately it could be they who are assigned the task of conducting the merits test before referring their clients on.
This is one of the few original ideas in the report it would be a shame if it were to be ignored.