The Government is depending on discretion to cover the sort of personal injury cases highlighted last week by The Lawyer's legal aid campaign.
In an exclusive interview with The Lawyer in response to our article last week, Minister of State in the LCD Geoff Hoon claims that the as yet unspecified criteria of the Legal Services Commission could cover such cases, but they will not be included in the legislation. Critics, however, assert that this discretion and the capping of the funding code's budget will act as a deterrent against starting cases early in the year and as a complete block as the money runs out.
As the Standing Committee began to consider the Bill, Hoon tells us: “I am pretty confident that all but one of these cases would get legal aid subject, as you say, to discretion.”
The discretion is that of the Lord Chancellor, Lord Irvine, and eventually the Legal Services Commission.
Lord Irvine has identified three types of personal injury case which will still be eligible for public funding: cases with high initial investigative costs, those with high total costs and those with a public interest element.
These “directions” from Lord Irvine will be incorporated into the Legal Aid Board consultation document, “The Funding Code”, which will set down the criteria the Legal Services Commission will use to judge all legal aid applications.
However, there has been criticism that the consultation paper does not make the situation any clearer.
It offers a band of between £15,000 and £50,000 for the minimum value of a high-cost case. But it also admits that “public interest is open to a wide variety of interpretations”.
Hoon now says: “A public interest case means anything that involves a novel point of law and secondly has implications for the generality of people rather than the specific. The new proposals write in public interest as a specific criteria for legal aid funding in a way the existing rules do not.”
Consultation on the code ends on 30 May. But those who have argued for these “directions” or exemptions to be spelt out in the actual Bill will be disappointed.
“The funding code has to be approved by Parliament – the fact that it is not technically in the Bill does not make the slightest bit of difference,” argues Hoon.
“It is a part of our reform proposals. And there is nothing in there that should make them [lawyers] afraid that in the right kind of cases they will not receive assistance.”
The Law Society, which this week launches a high-profile campaign against the proposals (see panel), points out that even if a case passes the discretionary test, there may be no money available. Kamlesh Bahl, the society's vice-president, tells The Lawyer that the legal aid budget will be capped for the first time. “It's going to be a lottery,” she says. “They're rationing access to justice.”
Hoon says that the target of the changes in legal aid funding is the 81 per cent of personal injury cases with a total cost of less than £4,000 each. These are the cases which will be subject to conditional fee arrangements.
“This is money [legal aid paid on personal injury cases] we could spend more effectively elsewhere within the legal system,” says Hoon.
“We will not spend any less but believe that there are priorities within the system to help the most vulnerable people in society who are not well assisted by the traditional legal aid scheme.
“If personal injury work can operate as successfully as it does there is no particular justification for spending taxpayers money on it.”
Last week The Lawyer highlighted a series of high-cost cases, some with public interest dimensions, ranging from that of miner Ken Williams to Ben Smoldon, who broke his neck playing rugby. We said it was crucial that these cases be retained within a legal aid framework.
Hoon says all the cases, with the exception of the one involving Daniel Burnett, a 17-year-old cyclist who suffered severe head injuries when he was knocked down, will still qualify for legal aid.
Burnett's case hinged on a dispute over conflicting witness statements. His solicitor Carol Jackson was able to prove that the weight of liability for the accident fell on the driver and Burnett, who will need medical help for the rest of his life, won his case.
Jackson says the dispute over the evidence makes it the sort of case lawyers will not take on a no win, no fee basis.
“I can't understand why it would not be taken on a conditional fee basis,” counters Hoon. “If the lawyer is saying to you that they are so doubtful about evidence that they are not sure they can win, then frankly those cases should not be taken.”
He adds: “I have no hesitation in saying that. If lawyers don't think cases are going to be successful then they should not take them. Nobody is benefiting from speculative litigation in that sense.”
However, Burnett won his case.
Hoon thinks the competition among lawyers offering conditional fee agreements will mean people will find lawyers to fight their cases.
He says: “There is enough opportunity for lawyers as a result of our proposals to extend these conditional fees and if particular firms choose not to there will be other firms who will move into the areas and operate very successfully. “The key to this is getting people in through the door with potentially good cases – [the more you do] the more chance you have of running good cases and recovering the costs.”
The Law Society polled backbench MPs and found that two thirds of those questioned agree that the proposals will restrict people's access to justice while a third say that legal aid should not be abolished for personal injury work.