Legal aid cuts will mean less justice for all
April 2013 will see a dramatic loss of access to justice for residents of Hackney and beyond. The losses fall into three categories.
Loss of legal aid
From April this year, the scope of civil legal aid will shrink dramatically. Whatever your means, you will no longer be able to seek legal aid in clinical negligence, consumer or contract disputes, criminal injury cases, debt, employment, education, the bulk of housing disputes, private family law (divorce disputes or disputes about children) or welfare benefits. There will be some limited exceptions but in effect people with serious legal problems will be expected to finance them themselves.
The government aims to save £350 million. The last government had already put in a five-year pay freeze for legal aid lawyers. In October 2011, pay was cut by a further 10 per cent.
The results of the cuts include the loss of law centres and the Citizens Advice Bureau at the Royal Courts of Justice, which currently deals with 2000 unrepresented litigants a year.
It is widely predicted that when the cuts begin in April, the courts will be flooded by a new generation of ‘litigants in person’ or, as the government prefers to call them, ‘self-representing litigants’.
Legal aid firms will do what they can to continue to provide services to clients who cannot afford to pay and who find themselves removed from legal aid eligibility. But there is only so much we can do while remaining in business. All informed observers, including a large number of judges, recognise that the changes will give rise to chaos in the court system.
‘No win, no fee’ changes
The second major change in April will be to deprive successful claimants of the full measure of the damages they recover in ‘no win, no fee’ cases. The government permitted these from 1995, initially as a replacement for legal aid in accident litigation. They came to be seen as a real means of accessing justice for those with a good case but without the means to pursue it. Lawyers would take on a case, recover nothing if they lost and recover a bonus or success fee if they won. The idea of the bonus was to make up the cost of running cases that lost. Initially, the bonus or success fee was paid by the successful party out of their compensation. But there was no just reason for people who had suffered loss to be deprived of part of their compensation and in 1999 the law was changed to the ‘polluter pays’ principle, so that any success fee would be paid by the defendant. In reality, defendants are represented by liability insurers.
Unfortunately, the coalition government has sold itself to liability insurers. From April, the law will change from the ‘polluter pays’ principle to the ‘victim pays’ principle. Success fees will no longer be paid by the wrongdoer, or more accurately, their insurers, but by the successful claimant. However, this change will not apply to insolvency cases for the reason that the government itself is the biggest claimant and wishes to maximise the recovery of unpaid taxes due from insolvent persons or companies to the treasury.
It gets worse. From April 2013, the fixed costs that lawyers can recover from an opponent for representing, for example, victims of road accidents in claims worth up to £10,000 will be cut by 58 per cent. The fixed costs were agreed in 2010 after prolonged discussion between claimant and defendant representatives and the ministry of justice. They were set at a level which all parties felt was sufficient to do a proper job. Evidently, three years later, the cost of doing a proper job has fallen by 58 per cent. These cuts have been imposed without any genuine consultation.
And it does not stop there. It seems that victims of injuries worth up to perhaps £5,000 will have to represent themselves against insurance companies and their lawyers. The government will achieve this by raising the ‘small claims’ limit to deprive a claimant of recovering legal fees.
Judicial review
The third fundamental change will be to the process of judicial review. When government agencies or public bodies break the law, the process of judicial review enables legal challenges by affected citizens. This is obviously inconvenient for the government, which has made proposals to cut in half the period within which decisions can be challenged and reduce the scope of the challenges. Judicial review is often the only means whereby citizens can protect their rights. Access to justice encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems.
The present government regards access to justice as an unaffordable luxury. We high street lawyers have faced a barrage of cuts from this government and the last Labour government over the past ten years. It is tempting to give up. But we know that would be a disaster for the people we represent so for as long as we can we will continue to resist and complain loudly.