THE ACCESS to JUSTICE ACT 1999 Civil Cases The state funding of civil cases has now been taken over by the Comm

The 1999 Act does make provision for the Lord Chancellor to fund cases which otherwise would be excluded (as an exception) if it is in the interests of justice to do so.

3) Eligibility

There will continue to be both merit and means tests in civil cases with contributions being payable where appropriate. There is unlikely to be major changes in the means tests until greater funds are available (these though will have to come from savings within the scheme). From the information available at present (see booklet) the schemes look very similar to the old schemes - the only changes are that the limit of work for Legal Help and Help at Court is now £500 and allowances for spouses and dependents have risen slightly.

The merit test will be set within the Funding Code and is thought to become more flexible than the current "chance of success" test.

The new scheme has separated family/matrimonial cases to reflect the mediation approach to family disputes to encourage the parties to reach a mediated settlement than having to go through the courts.

4) Suppliers and Quality

To try to ensure the quality of the service provided the Access to Justice Act 1999 has developed and extended the "franchising" scheme introduced in 1994 by the Legal Aid Board. The 1999 Act has established a scheme of contracts with law firms and since April 1st 2001 only firms with such contracts will be able to get state funding for advice and representation given.

The Legal Services Commission is to set up a quality mark (see below) and this together with the contracting scheme will help consumers feel more confident of the service they will receive from the suppliers of legal advice.

5) Community Legal Service Partnerships

Under the 1999 Act the Legal Services Commission has a duty to liaise with other funders of legal services to develop networks of legal service providers and so widen public access. This is to be achieved through the creation of Community Legal Service Partnerships in each local authority area to develop a coordinated funding and planning approach to legal service provision.

6) Costs for non-legally aided parties.

At present the original rule that non-legally aided parties cannot get their costs from the legal aid fund remains but the Act does contain provisions for changing the rules to allow more flexibility and removing or at least reducing the advantage to legally aided parties.

Criminal Cases

The state funding of criminal cases is now controlled through the Criminal Defence Service which came into force on the 1st April 2001. This body again is aiming to improve the system in a number of aspects:-

Funding

The funding of criminal cases will remain demand led. There will be no set budget and all cases meeting the merit tests will be funded.

2) Eligibility

Legal aid will no longer be subject to the means test.

All cases will automatically be funded if they meet the merit test for funding which will at least for the present remain the same as under the old schemes. In the Crown Court, at the end of the trial the judge will have the power to order the defendant to pay some or all of the costs of their defence if appropriate.

3) Coverage

The aim of the Criminal Defence Service is to ensure that individuals in criminal investigations and prosecutions "... have access to such advice, assistance and representation as the interests of justice require".

4) Suppliers & Quality

In order to try to ensure the quality of the work given by legal service providers the Criminal Defence Service will also have a quality mark and be running a contracting scheme similar to the Community Legal Service. Again to receive state funding for the work provided to clients, solicitors will need to obtain a contract from the CDS and in order to obtain that contract they must meet the quality standards laid down by them.

The aim though is that once a law firm has a contract then they will be able to receive funding for all the work they provide for a client - from the police right through to trial - without having to keep applying to different schemes.

There is also provision within the Access to Justice Act 1999 for the Legal Services Commission to create/develop panels of firms or individuals who specialise in certain areas and defendants will be required to chose only from this panel.

Also currently the LSC is piloting schemes of "Public Defenders" - lawyers employed by the Commission to represent clients. Although there is a lot of opposition to this, it is hoped that they will provide more flexibility especially in the remoter areas.

Conditional Fee Agreements

Many lawyers in America work on what is known as a "No Win, No Fee" or Contingency Fee Basis - they charge no fee if they loss the case but will take a percentage of the damages awarded. The more difficult or unlikely they are to win then the higher the percentage will be charged.

Contingency fees are banned in this country but under the Courts and Legal Services Act 1990 Conditional Fee Agreements were introduced. Under a Conditional Fee Agreement a solicitor agrees to take either a reduced or even no fee if they lose but will raise their fee by an agreed percentage - an uplift or success fee - if they win. The maximum a solicitor can charge is twice their usual fee and the amount of the uplift reflects the risk of losing involved. The normal rule that the loser must pay the winner's cost still remains and so it is usual for the client to take out insurance in case of the eventuality.

The Access to Justice Act 1999 made changes to Conditional Fee Agreements which were made to try to encourage their use particularly in those areas no longer covered by legal aid. Where a person subject to a Conditional Fee Agreement wins their case the Courts can order the losing party to pay both the success fee and also the insurance premium paid.

The Access to Justice Act 1999 now allows Conditional Fee Agreements to be used for all cases except medical negligence cases. This generally is due to the difficulty and uncertainty involved with medical negligence cases but this may change in the future.

Advantages of the Use of Conditional Fee Agreements

Cost Saving to the State.

2 Wider Access to Justice - Conditional Fee Agreements allows people previously unable to claim legal aid to bring cases to court.

3 Performance Incentives - encourages solicitors to perform better as they have a financial interest in the case

4 Wider coverage - conditional fee agreements can be used for cases previously outside the legal aid scheme.

5 Public acceptance.

6 Fairness to the opponent - under the old legal aid scheme if the legally aided person lost the case the winner was unable to claim their costs from the Legal Aid fund and this could be very unfair.

Disadvantages of the Use of Conditional Fee Agreements

Uncertain Cases - there is a fear that solicitors will only take cases with a very high chance of winning.

2 Insurance costs - the cost of the insurance to the costs if you lose a case can be very high and are increasing rapidly.

3 Financial involvement of lawyers - some believe it is not good having lawyers having an interest in the outcome of the case. Some lawyers may encourage clients to enter a Conditional Fee Agreement when in fact they already have insurance cover eg. Under a household policy or may encourage a settlement if they are concerned they may not win the case in court.

4 Insurance pressure - insurance companies may pressurize a client to settle out of court to protect them from having to pay out on legal costs insurance.