The media has recently occupied itself with reports that lawyers who promote flimsy cases backed by legal aid, might be made to suffer in their pockets by the Legal Aid Board. And some might say high time.
Not only should such lawyers lose fees, they should also have to pay the other side's costs. Nor should we forget the learned Counsel who seem so ready to put their name forward in support of hopeless cases. They, too, should pay.
We all have tales of useless cases fought at great expense to no one's benefit except the solicitors'. I have recently suffered a spate of legally aided claims of the 'O'Brien' type where solicitors had been retained, Counsel instructed and pleadings settled and served – all on legal aid.
What were they seeking? A declaration that, on 'O'Brien' principles, a second mortgage should be set aside, in circumstances where there was no possibility of any equity for the second mortgage, where the debt had been written off years ago and had the mortgagee just been asked to provide one, a form 53 would have been dispatched by return.
Presumably the client can be persuaded that the solicitors have achieved a huge victory, when in reality, this is far from the case. It is a waste of everyone's money and effort. Who certified these as proper cases? Who at legal aid level failed to ask obvious questions?
It is essential to achieve a proper early assessment of cases put forward for legal aid. Members of our profession might volunteer to do this on a pro bono basis – maybe setting aside an hour or so a week to look at five or six applications. This would ease the burden and, perhaps, add some commercial reality.
As for people resident abroad who bring cases to the UK to get legal aid, the answer would be "no", would it not?
HSBC Group Legal