Not waving but drowning

The legal aid system was introduced in 1949 with a view to being ‘law’s answer to the NHS’. The poorest members of society who could not afford to pay for legal advice were to receive public funding to see a solicitor and be represented in court. However, the system has been under threat for some time and, in November 2010, cuts were announced that raise fundamental questions about access to justice for the poorest and most vulnerable members of society. It is estimated by some that around 750,000 people will be deprived of public funding by the proposals.

State intervention

The government believes public funding should only be available to cases where the individual’s life or liberty is at stake, they are at risk of serious physical harm, they face being made homeless, or face state intervention that could lead to a child being removed from their care. Therefore, family cases such as contact with a child, decisions on residence, and divorce, including division of matrimonial finances, are now seen as insufficiently serious to justify legal aid. It will only be made available for these types of case if there is an element of domestic violence.

These proposals have caused a great deal of concern across the legal profession and among judges. Following the breakdown of a relationship, one party may feel they have not been treated fairly. They will need to know their rights and obligations, so access to expert advice is crucial. The government proposes only a new legal advice telephone line (not staffed by qualified lawyers) to provide initial advice. There will be no face-to-face meetings and the adviser is unlikely to be able to go through documents and build up a relationship with the individual. The other options are local law centres and the Citizens Advice Bureau, but these are also under threat of loss of funding.

Many people are going to be faced with no alternative other than to try to represent themselves ?in court.

The obvious pitfalls of being a litigant in person centre on the lack of legal knowledge and expertise in presenting a case to the court. Parties without a working knowledge of the court process will not be aware of how a set of proceedings is structured. The court staff will be relied upon to guide people on the forms they are to complete and the information required. This will take up more of their time, risk delays to other administrative tasks and perhaps slow down their processing of applications sent to the court by post.

End result

Time is also a factor in court once proceedings are issued. Judges will need to spend more time with litigants explaining what is expected of them and outlining the law on issues, while still being tied to not giving specific legal advice. The court will not be able to deal with as many cases each day and the wait for a court hearing will be increased.

The most fundamental issue is presenting a case to a judge. There is always a risk when putting a case before the court and leaving it to a judge to decide that you will not achieve the outcome you want. Without having the necessary expertise in what is reasonable in the eyes of the law, how best to present a case and how to challenge evidence, parties run a much higher ‘litigation risk’ than with legal representation. Parties will also be unsure of what powers the court has and how it makes decisions. The latter is very important as, once a decision is made, a party should be in a position to know whether the decision is right, fair or appealable.

The government proposes to allow funding for a number of family cases where domestic violence is alleged. However, the alleged perpetrator will not be extended the same funding and may therefore need to present his or her case in person. The court will hold a contested hearing to consider the allegations and decide whether, on a balance of probabilities, the allegations are true. In such circumstances, a case can be decided on the smallest of factors in relation to how a party has presented their case, leaving the litigant in person more vulnerable then someone with legal representation. This could in turn have a detrimental impact on related proceedings if the alleged perpetrator was seeking contact or residence of a child.

Furthermore, with no legal representation available, the victim faces the very real prospect of being cross-examined by the perpetrator rather then a solicitor or barrister. This is quite an unpalatable prospect for most.

Bottom line

However, the fundamental objection to the cuts is that people who cannot afford legal advice will be at a disadvantage compared to those who can. The proposals try to address this, but wholly fail to satisfy. It suggests a change to the law to allow courts to order, early in proceedings, that if a party is financially better off then the other and they can afford their own legal fees while the other cannot, the wealthier party should pay a lump sum to the other so they can pay for legal representation too. As the process is not detailed in the proposals, it is presumed this will involve an application to court with evidence in support setting out details of both parties’ respective finances. Such an application may not be straightforward and may still need to be made in person as, understandably, few solicitors would want to accept the risk of preparing an application and representing a client in court with the knowledge that, if the application fails, they will not be paid. It is suspected in the profession that these applications are unlikely to be common or effective.

A consultation period concluded at the end of June, with the government considering approximately 4,800 responses received to the proposals from ?those involved in providing and supporting legal ?aid. Despite a wealth of criticisms and concerns ?raised in response, the government has underlined reform is necessary and it will not flinch from making the required changes. n