B. In a criminal case jurors are brought in the Crown Court when the defendant pleads not guilty. The judge decides point of law and the jury decides the facts. At the end of the prosecution the judge can tell the jury to acquit if the evidence against the defendant has not made out a case. If the trial continues then the judge sums up the case at the end to the jury and also directs them on any law involved. The jury must come to a unanimous decision they retire from the court to a separate room and decide whether the defendant is guilty or not guilty. Once they have reached there verdict they then return to the court and give there decision. The jury do not have to give any reason for there decision.
Q3 a. There are many ways that a civil claim can obtain legal help, one of them being from a solicitor. Solicitors can charge from around £80 p/h for routine advice from a small local business, to over £300 p/h for work done by a top city solicitor firm of solicitors in specialised fields. Another way a civil claim may be financed is if you already own insurance e.g. motor and life insurance they have certain policies which cover this at a small extra cost. There are also Pro bono work, barristers who work for free for people who are not entitled for public funding. They are normally newly qualified barristers who want experience. Another way that a civil claim can be financed is by conditional fees (no win no fee arrangements). A major problem in taking civil case to court is that it is not possible to know in advance exactly how much that case will cost. This is because it is not known how serious the other party is defending the case. It may be that once a court case is started, the other side will admit liability and the case will not actually go to court; it can be settled quickly and also moderately cheap. However, if a case is defended then costs will rise. Apart from lawyer’s fees, there will be expenses of getting evidence perhaps the cost of an expert’s report on the matter, as well as the court fees to pay which can cost hundreds-thousands. If the claimant wins they should be able to get most of the cost back, but there is risk that if the claimant loses the case then they will have to pay the defendants cost as well as their own. Conditional fees were first introduced by section 58 of the courts and legal services act 1990 in personal injury, insolvency and human rights cases; by 1998 the use of conditional fees was extended to all civil cases except family cases. Under the access to justice act 1999 conditional fees form an important part of government strategy for funding civil cases. The solicitor/lawyer and client agree on the fee which would normally be charged for such a case. The agreement also states what the solicitor’s ‘success fee’ will be. This can be an uplift of up to 100% of the agreed normal fee. If the solicitor does not win the case then the client pays nothing. If the solicitor is successful then the client pays the normal fee plus the success fee. Most solicitors will also include a ‘cap’ on the success fee, which means that it cannot be more than 25% of the damages which are awarded to the successful claimant. A further way a civil claim may be financed is access to justice act; this is the community legal service. This is managed by the legal services commission. There are given a set financial limit fir each area and the money can run out. There are two budgets within the CLS which are the family budget and the civil budget. Cases such as personal injury, conveyance, business’s, wills and trust and defilation can not be funded. The legal services commission decide which case to fund there are main priorities to cases such as child protection, life at risk, welfare of children, domestic violence etc.
B. There are many advantages and disadvantages for each of the methods of finance.The great advantage by paying your own fees (private fees), you have a wider range of solicitors and also of higher experience. However if you do not win your case you have to pay the winners cost this is seen as a downfall because you are paying your own fees already by hire of your solicitor which can range from £80-£300 per hour and then having to pay the winner cost can leave you in greater damage than you already started of with. An advantage of being funded by legal insurance is that it is normally covered by your motor insurance or life insurance for an additional small amount for help with your legal fees but can only sometimes be in cases arising from road accidents but there are some policies purely for insurance against legal cost. Suitable advantages for conditional fees, there is a wider access to justice there performance is inducement which is a optimistic view for the client, there have a wider coverage and you also make an agreement with solicitor that your not going to pay unless your case is won. Many people would find it impossible to bring forward a case without conditional fee. Although the conditional fees are made to help people put claims in when they do the poorest clients were not able to afford insurance premiums or disbursements. The amount of work needed to be done on some claims especially personal injury claims with accidents at work meant that it is difficult to estimate the cost and such cases had cost solicitors more than 100% uplift fee. Solicitors can be very choosey about accepting CFA cases and usually only accept them where there is a strong case and clear opportunity for profit. Where there is a less certain outcome some solicitors would cover there case by an insurance policy which would pay both sides. Some clients are encouraged to make unnecessary conditional fee agreement. The community legal service fund is maintained by the legal services commission from money which is paid to the commission by the Lord Chancellor. The Lord Chancellor determines how much funding is appropriate each year although he has to work within the government’s budget. This limit on the amount of money can mean that some people will be refused funding because the money has run out which is a downfall. Within the set budget the two sub budgets which are civil and family have limited flexibility to switch money between the two. Money which is allocated to each area is done so by how much the commission feels is necessary. Conversely this could result in one area not having enough to fund all cases it needs to while there is enough funding in another area. To help this problem in very expensive cases will be funded on a case-by-case basis through individually negotiated contracts from a central fund. Nevertheless certain types of legal matters will not be funded by the community legal service fund which are:
- Allegations of negligently caused injury death or damage to property, apart from allegations of clinical negligence
- Conveyancing
- Boundary disputes
- The making of wills
- Matters of trust law
- Defamation or malicious falsehood
- Matters of company or partnership law, or
- Other matters arising out of the carrying on of a business
Most of these were excluded from receiving legal aid under the previous system, but some of the categories used to be able to get help. In particular people who suffer injury or damage through someone else negligence used to be able to get legal aid but now excluded from government funding.
