The legal Profession & Other Sources of Advice and Funding

The legal Profession & OtherSources of Advice and Funding Funding and Other Sources of Legal Advice

Lesson Objectives • I will be able to describe different methods an individual can use to fund legal services • I will be able to describe the financial limits on each method of State funding • I will be able to describe the sources of legal advice apart from a solicitor or barrister

Law is open to everyone but legal services can be expensive • Litigation, the threat of and the process of taking legal action against another person or organisation in a dispute can be expensive • A person is primarily responsible for paying his lawyer’s costs resulting from the litigation • Losing party will usually pay the costs of the winning party and their expenses • However, the winner may still have fees to pay as well • Difficult to estimate the fees in advance as there are many variables • Simple cases can drag on for a considerable amount of time – Hall v Simons (2000) Cockbone v Atkinson, Dacre and Slack

Private Funding • Paying bill with own resources – own money • Insurance company pay the bill – legal expenses insurance • Conditional fee agreement – personal injury claims

Own Resources • You would use your own money when instructing a solicitor to make a will or undertake the conveyancing when buying or selling a house • More complex legal work would probably be too expensive for personal funds • Businesses have more need to pay directly for legal work – more sense to seek advice sooner rather than later • Solicitor’s work is charged at an hourly rate plus expenses such as court fees • Rate will depend on location of solicitors – London will be more expensive – also expertise of lawyer will push price up • The Guide to Summary Assessment Costs used by the courts: • Up to £380 an hour – solicitors with over 8 years post-qualification experience, including at least 8 years litigation experience, working in Central London • From £95 an hour – trainee solicitor, paralegals and fee earners of equivalent experience – Teesside and Devon Some work such as conveyancing or making a will may be done for a fixed cost. In Hall v Simons (200) – the solicitors bill that was unpaid was for about £10,500 and related to a building dispute where the sums involved totalled a little over £20,000.

Insurance • This is a form of risk-sharing using a legal expense insurer • There are two types of policy: ‘before the event policy’ and ‘after the event policy’ • Before – a policy which can be taken out usually with an annual premium, to provide future cover for possible legal problems • Some policies are limited in what they cover and may include restrictions on choice of solicitor, hourly rates and other expenses

Conditional Fees • This is effectively risk-sharing with lawyers • This is part of the change to the funding arrangements set up by the Courts and Legal Services Act 1990, to combat the huge cost of public legal funding • Before this, solicitors were not allowed to offer clients any risk-sharing arrangement • Around 2.5 million people in the UK suffer accidental injuries every year • Public legal funding through Legal Aid for these costs was withdrawn in 2000, leaving these people with the option of paying for legal action themselves or risk sharing in some way

Conditional Fee Agreement • This is often known, inaccurately, as a ‘no win, no fee’ arrangement • This is where the solicitor makes no charge if the case is lost • However, the disbursements (costs incurred by the solicitor on behalf of the client such as court fees, or fees for medical reports) and the opponent’s legal charges will still have to be paid • If the case succeeds, the solicitor charges a ‘success fee’ on top of the normal hourly rate • The loser may be ordered to pay at least part of these charges, including the success fee • Insurance is normally taken out at the client’s expense to cover this risk with an ‘after the event’ policy

Contingency Fee Arrangement • A person is not charged if he or she loses, but the fee, if he or she is successful, is a percentage of what is recovered • However, this arrangement cannot be used for cases which require court proceedings • There are also other possible arrangements such as a discount conditional fee where an hourly rate is agreed as being payable if the case is won, but reduced if the outcome is unsuccessful • Such an agreement could also provide for a success fee

State Funding • Community Legal Service • People often need legal advice: relationships, asylum, immigration, community care • Sometimes it is enough to provide information leaflets or to direct people to other services, such as debt counselling or mediation • The first part is the information available in the leaflets and on the website – www.clsdirect.org.uk • They provide funds direct to solicitors and to other organisations such as the Citizens Advice Bureau • These organisations provide funds and promote civil legal services • This is provided in a number of categories from general information to advice and representation – these categories are collectively known as legal aid

The most usual starting point is Legal Help • Allows people with low income and little savings to get free legal advice or help from a solicitor or experienced legal adviser • Lawyer must have a contract with the Legal Services Commission • Designed to cover everything up to and including the preparation of a case to go to court • Can also cover costs of mediation in non-family cases • If money is won, then it must first be used to pay the solicitor – statutory charge

Help at Court then provides funding for a solicitor or adviser to represent a person in court • This might be used in representing someone who is being sued for a debt or who is defending eviction proceedings • There are financial criteria to meet and it must be cost-effective • Family cases have always taken up a large part of public legal funding – 3 types of funding available all of which have financial criteria: • General Family Help • Family Mediation • Help with Mediation

General Family Help covers preparation of a case to go to court and general advice on any legal problems related to a family matter • It also covers the costs of starting legal action and legal representation to get a court order and sort out arrangements following the order • This help can cover negotiations in family disputes if there is no mediation happening • Legal aid for mediation in a family dispute is called Family Mediation and is used to help pay for the costs of the mediator

The final part of legal aid for family matters is Help with Mediation – this would be used to help pay for drawing up the agreement reached between the parties or following up the arrangement that has been made • For other cases that a person might need to bring to court, there is Legal Representation – this is again subject to financial criteria, and the case must be one that the Legal Services Commission considers it reasonable to fund – it is also subject to the statutory charge • Funding can also be stopped if the solicitor feels that the case is not strong enough • Types of cases that can be funded include consumer cases such as claiming against the seller of faulty goods, or an appeal to the Employment Appeal Tribunal • Legal Representation will not usually pay for the costs of taking a personal injury case to court, as this is covered by conditional fee agreements

There is also Controlled Legal Representation, which is only representation before a Mental Health Review Tribunal or an Asylum and Immigration Tribunal • In many cases there are no qualifying criteria, financial or other • The only other legal aid relates to criminal cases and is dealt with by the Criminal Defence Service

Criminal Defence Service • Legal aid in criminal cases is organised by the Criminal Defence Service • 3 different types of help: free legal advice at the police station, advice and assistance before charge, help with representation at court • At the police station is the right to free independent legal advice from a duty solicitor – this has no financial or other criteria attached • However, this advice is not necessarily face-to-face and could well be over the telephone • A person can choose his own solicitor and the advice will be free if they have a contract with the Criminal Defence Service • On arrest, a person is given an information sheet explaining how to get legal help • Even where a person has not been charged with an offence, he may need advice and assistance – this is however subject to financial criteria

Help with representation in court comes in three forms: • The first is a Representation Order – this applies in the Magistrates’ Court and is subject to complex financial criteria, except for those under 16 or claiming most benefits, as well as a merits test; it must be in the interests of justice for the accused to be represented • The interests of justice test is a requirement of Art. 6 of the ECHR, which states that everyone charged with a criminal offence has the right, ‘if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.

The criteria used for the test are: • Whether it is likely that the court will impose either a custodial sentence or one which will lead to a loss of livelihood • Whether the case involves substantial questions of law or evidence of a complex or difficult nature • Whether the accused is unable to understand the proceedings or state their own case because of, for example, age, inadequate knowledge of English, or illness • Whether it is in the interests of someone other than the accused that the accused be legally represented • Whether the defence to be put forward is frivolous • Whether the accused has been remanded in custody pending the trial The recently introduced means test has not been well received by many, as it is seen to be in conflict with the right to a fair trial. there are no financial conditions to getting a Representation Order in the Crown Court. However, the interests of justice test must be passed. This is unlikely for very minor offences.

The second type of legal aid is Advocacy Assistance - This covers the costs of a solicitor preparing a case and initial representation in certain cases such as anti-social behaviour orders or non-payment of council tax • There are no financial criteria to be met • Finally there is free advice and representation at the Magistrates’ Court from the duty solicitor, although not for very minor cases • However, one can only use the services of the Duty Solicitor at one hearing – usually the first – and not at a contested trial, so a Representation Order would then be needed

Other Sources of Legal Advice

Citizens Advice Bureau • Provides legal advice as part of its service • A charity, but gains a substantial amount of income from its contracts with the Legal Services Commission to provide legal advice to people with debt, welfare benefits, housing, employment and immigration issues • Advice is free and where further action is required, appropriate agencies or solicitors are contacted • May bureaux work with local solicitors firms, giving access to over 1,000 specialist solicitors pro bono (free)

Law Centres • Existed since early 1970s • Usually in less affluent areas • There are just over 60 law centres in the UK not including Scotland • Designed to help people access the legal system • May take up a case where legal aid is not available and are often open outside normal office hours • Specialise in social welfare law • Welfare rights, immigration and asylum, housing and employment rights • Funded from a variety of sources • Hold contracts with Legal Services Commission to provide casework services and receive grant aid from local councils • Employ solicitors, barristers, legal advisers and community workers • Many lawyers volunteer to help in their nearest law centre as part of pro bono work

Other Sources • Legal advice can sometimes be obtained from solicitors offering a fixed fee or free interview at a special session after hours, or on a Saturday morning • Advice is usually available from a person’s trade union, not just on employment law matters • There is also legal expenses insurance either through a specialist policy, home insurance, car insurance or a motoring organisation • There is often free advice in the media; it often appears in newspapers printing articles on consumer affairs

Public funding system – Legal Services Commission Legal Services Commission Community Legal Service Criminal Defence Service Public Defender Scheme NfPs Solicitors’ firms Solicitors’ firms Not for profit organisations (NfPs)

INFORMATION PROVIDERS: Libraries or community centres: leaflets, ref. material, access to CLS directory &/or website Community Legal Service website www.clsdirect.org.uk SPECIALIST HELP PROVIDERS Trade unions; RAC & AA; Shelter (450 NfPs) on their specialism GENERAL HELP PROVIDERS advising on action, giving basic assistance, e.g. many CABx Providersof legal services SPECIALIST HELP PROVIDERS CABx and Law Centres may also be given contracts to provide government-funded legal advice, especially to counteract advice deserts SPECIALIST HELP PROVIDERS About 3,600 solicitors’ firms have contracts with Legal Services Commission. (But this is less than 30% number of firms under previous scheme)

1.Advice deserts • Especially in rural areas • Not enough providers have contracts with LSC • Rates of pay too low • 2.Eligibility levels • Only those with the very lowest levels of income qualify for help Problems with funding of civil cases • 4.Non-availability • Funding is not available for all civil claims • Conditional fees instead • 3.Lack of funds • The budget is capped, so some cases will not be funded simply because there is no money left

Yes! Have been used in over 50,000 cases for personal injury claims i.e. increased access to justice for many The government is considering how to make the system simpler so that challenges are less likely If a claims firm is used this also increases access to justice – for those who would not go to a lawyer No! Poorest clients cannot afford insurance or disbursements Those with weaker/riskier cases find it difficult to get a solicitor Difficult to estimate the cost of some personal injury cases which means that solicitors lose out eventually Large number of challenges re enforcing the agreement Challenges to front loading of costs on the basis of being out of proportion to the stage the case has reached Two of the largest claims firms have gone out of business, suggesting that there is not sufficient profit in CFAs to keep a business going Are Conditional Fees Working?

CABx • Began in 1938 • About 1000 in the country • Free advice 450 NfPs – RAC, AA, Trade Unions, Shelter, etc - within their specialism • Law centres • First one in 1970 • Free advice to those in their catchment area Free/Cheap Advice Agencies • Criminal Defence Service • Duty Solicitors • Advice and assistance for 1 hr • Representation – but merits test Cheap/free initial interviews offered by solicitors • ALAS (Law Society): • Accident Legal Advice Service • Free initial interview • Also Law Society’s Accident Line • - Freephone service to put accident victims in touch with solicitors • Free Representation Unit • Since 1992 • Run by the Bar • Barristers will represent clients in court at no cost • 2000+ cases / yr

Not for: • Non-imprisonable offence • Detention on a warrant • Detention in breach of bail • Drink/driving offences Telephone advice now preferred rather than seen as a defect! • Not for: • Non-imprisonable offence whilst on bail • Trials in magistrates’ courts without representation order One hour’s work only duty solicitor schemes advice and assistance • Means test: • Only those on low incomes will qualify • But duty solicitor at magistrates’ court can still see all in custody – no charge At police station or other premises Criminal Defence Service representation • Covers cost of solicitor to prepare defence before going to court • Representation at court, including issues such as bail • Barrister if required • Financial eligibility – free for: • Those receiving income support, job-seeker’s allowance, state pension credit • U 16s, full-time students U18 • Means test for others Merits test – Interests of Justice test (see next slide)

The legal Profession & Other Sources of Advice and Funding