Legal Aid: Refocusing on Priority Cases - CP12/09
Legal Aid: Refocusing on Priority Cases
Consultation Paper CP12/09
List of questions for response
We would welcome responses to the following questions set out in this consultation paper. Please email your completed form to: fax to: 020 3334 4296.Thank you.
Question 1. Do you agree that the definition of Wider Public Interest should be strengthened to ensure that a case will only qualify if it is a good vehicle on its facts to deliver those benefits? Do you agree that disadvantages to the public from the proceedings should also be taken into account in assessing public interest? What safeguards are appropriate for claims brought by minority interestsThe Association believes that the question is misconceived. The present system is such that the LSC would have to be satisfied that a case did raise relevant issues on its own facts. Any tinkering with the system would be likely to prevent cases being brought that need to be litigated. The arrangements already in place are considered sufficient to ensure that issues are raised on the particular facts of a claim.
The suggestion that the LSC or MoJ should be weighing up disadvantages to the public in respect of any proposed claim will be seen as a proposal to defeat the interests of minorities. If in any area a minority group is oppressed by the majority, then it would appear that the MoJ is proposing that help should not be available to protect the minority, no matter how meritorious their claim may be. On the basis of what is proposed it may also be argued that simply allowing a claim to be brought is not in the public interest if that claim is going to be expensive in terms of commitment by the legal aid fund, as it may be decided by the MoJ that it is in the public interest to keep those monies available for other potential actions
The question relating to safeguards for minority interests appears to be added at the end because somebody at the MoJ has realised that the proposal is in fact an attack upon minority interests. Once you set up a system to defeat minority interests it seems otiose to add consideration to safeguard those interests. The only safeguard would be to avoid tinkering in the first place.
Question 2. Do you agree with the proposed special controls and budgeting for public interest and borderline cases as described above? Do you agree that the existing committees should be replaced by a new committee? Do you agree that the new committee should include non-lawyers? Are there other groups who should be represented on the new committee?
This Association does not agree that the Lord Chancellor should ring fence a part of the CLS fund in the way proposed. The Commission is in the best position to decide how the fund should be dealt with, and imposing random limits would be unhelpful to all involved. As there appears to be no problem with the present arrangements, in which event it is suggested that there is no purpose in tinkering, any alterations should await any root and branch improvements to the system which will have the benefit of a considered approach.
Question 3. Do you agree that we should refocus our resources on higher value damages claims and refuse funding for investigative help and representation where the damages are unlikely to exceed £5000? Should we retain an exemption for low value cases which do attract significant wider public interest? Should we apply this to individual claims, MPAs or both types of claim?
Damages claims that do not exceed £5,000 are often very important to the complainant and the impact upon them of successfully suing and obtaining their damages can be much greater than the impact of much larger claims for more well off litigants. These claims also tend to be against public authorities. The problem with these claims is that the courts system may have let down claimants and potential claimants by maintaining systems that are complex and expensive. It is the courts system that is not proportionate to the claims, and it is a failure by the MoJ that the MoJ is now able to “complain” that claims that do not exceed £5,000 incur disproportionate court costs. It is already a failure of the MoJ that it is extremely difficult for those with important, but lower value, claims who find it difficult to bring those cases in the civil courts. The proposal is to compound that failing.
The reference to 375 cases per year being affected by the proposal disguises the fact that it is the inefficient system in the Court Service, overseen by the MoJ, that will already have dissuaded many people from pursuing valid claims. Many of these claimants are going to be the vulnerable in society who need representation to bring such a claim but cannot afford it or simply cannot find a lawyer prepared and able to deal with it.
Some may therefore assume that the proposal is in fact about the MoJ disguising further the need for proper reform of the civil courts so as to permit access to the courts by the general public, and in particular by those whose interests need protecting. As these claims tend to be against public authorities the proposal will also be seen to be one of encouraging oppression by those same authorities. The Association, for those reasons, disagrees with this proposal.
Question 4. Do you agree that where an out of scope matter is brought back into scope because there is significant wider public interest this should only be for damages cases where the damages are at least £5000? Should we apply this to individual claims, MPAs or both types of claim?
The Association disagrees with this proposal. If there is a significant wider public interest then the level of damages is irrelevant. The fact of “significant” public interest should make the quantum (almost) irrelevant.
Question 5. Do you agree that we should add a specific reference to the prison and probation complaints procedures and the Prisons and Probation Ombudsman in section 8 of the Funding Code? Are there other complaints systems or ombudsman schemes which should be explicitly mentioned?
The Association disagrees with this proposal. There are problems with the way in which the Prison/Probation Service deals with people to whom they have an obligation. The ability to have the courts review the treatment by the Prison Service is an important control over the excesses by the Prison Service, and that should not be removed lightly. It is also clear that the Prison Service is already claiming “lack of resources” to try to excuse its obligation towards prisoners. The recent case of Kevin Pennington is a sufficient illustration of the problems that should not be occurring with the Prison Service, but which this proposal may help to disguise. This proposal may be seen by some as a cynical manipulation by the MoJ to safeguard the Prison Service from its wrongdoings and failings by manipulating the legal aid fund – both of which come under the umbrella of the MoJ.
It is already the situation that prisoners who wish to complain are advised that they should pursue their complaint through the internal systems using a COMP1a form. They are also advised to pursue the route through the Ombudsman when that fails. Unfortunately it is the experience of our members that the COMP1a forms, although submitted by prisoners, seem to disappear. Prisoners then submit subsequent COMP1a forms, again with no effect. Our members find that it is only when they become involved that these forms are found and the procedure followed.
If there was a “proper” complaints system that took account of the need for speed and the need to pay compensation, then perhaps a different view could be taken. As a starter, a system that required a full structured response within four weeks would make a difference, but there would also need to be included a provision that made it essential for the Prison Service to respond properly.
A suggestion would be that if the Prison Service was found on later review to have failed to accept its responsibility and/or pay proper compensation, then they would be required to pay double the compensation, together with any legal fees incurred. Everybody knows that if such safeguards were not imposed then the system would simply work so slowly that most claimants will have left detention before any decision is arrived at and will not thereafter have the ability to pursue the complaint. It would be our suggestion that all of the complaints procedures that members of the public are required to follow should have similar conditions imposed upon them if they are to gain credibility in the eyes of the public.
Question 6. Do you agree that we should include a specific reference to potential inter partes costs in assessing the cost / benefit of appeals in section 8 public damages claims?
The Association disagrees. If it is likely that a wrong decision has been made at first instance it should be remembered that that wrong decision may affect many litigants in the future and will be likely to affect the way in which the public authority deals with the general public. A case that has been badly decided can therefore impact upon the quality of service and potential abuses of authority for many years. The Legal Services Commission has always looked at these cases with care, and would only support an appeal where the prospects and benefits warrant it. There is no need to include a reference to inter partes costs. The danger would be that public authorities would simply look to ensure that the costs of all appeals are out of proportion to the issues, and in that way they will be making use of public funds to defeat the interests of the public.
Question 7. Do you agree that we should remove the presumption of funding and have a single test for granting funding in judicial review cases?
The Association disagrees. Since the decision of the High Court in R v Legal Aid Board ex parte Hughes (1992) there has been significant changes in the procedures for applications for judicial review. Whereas previously the procedure allowed applicants to apply for leave without involving other parties, the procedure now requires notification of the claim to other parties. This ought to mean that the grant of permission is in fact a much clearer indication from the High Court that there is a substantial issue to be litigated.
Bearing in mind how difficult it is for a litigant to gain permission to appeal to the House of Lords it is surprising to see the MoJ rely upon an argument that legal aid is not automatically allowed on the grant of permission to appeal to the House. It is agreed that the test for the House to hear an appeal is so strong that it is very surprising that this does not immediately trigger an entitlement for civil legal aid funding. There are not many cases heard by the House of Lords, but those that the House decides to hear will all have significant public interest.
Question 8. Do you agree that we should clarify the requirements around personal interest, so it is clearer that applicants for funding must have a personal benefit in the proceedings?
The Association agrees that there should be clarification on this subject. There ought however to be debate, and the MoJ is invited to set out details of those cases that have been brought and which would not come within the definition proposed, in order that a more informed debate can take place.
Question 9. Do you agree that further funding should not be granted until the receipt of acknowledgement and response, unless the court has granted permission? Do you think that the legal representatives or the LSC should carry this out?
The Association disagrees with this proposal. Members of the Association are well aware of cases where authorities have behaved so badly that they refuse to acknowledge service or respond as they would prefer to avoid the inevitable criticism that the High Court would be offering.
Question 10. Do you agree with extending the referral criteria for SCU case management? If yes, which cases would benefit from SCU case management? If no, please give reasons.
The Association disagrees with this proposal and, on the basis of information passed on to this Association, believes that the MoJ may not have a very good understanding of the workings of the SCU. We are advised by members that the SCU appears unable to cope with its work at the present time and that in e.g. public law cases where the costs limit will be exceeded it is usual for the SCU to take so long to deal with the grant of a contract that the case can have been concluded for some months before the contract is granted. It would therefore seem to be bordering on the reckless to seek to increase the work and responsibilities of the SCU.
Question 11. Do you agree that LSC should seek representations before funding is granted? Do you think the 14 day period is too long or too short? Should this be a discretion for LSC to seek representations in particular categories of law or specific financial circumstances of applicants? In which categories of law or circumstances would pre-grant representations be more or less useful?
The Association would have preferred to see at least some sort of analysis of the scheme that has operated in Scotland before commenting upon these proposals. There appear to be dangers that at too early a stage the Legal Services Commission is being asked to make decisions on the merits of a case. That would put the LSC in the position of a judge, but without the advantage of full/proper preparation and argument. This may simply be yet another suggestion by the MoJ to add efficiencies to the Justice System that simply gets in the way of doing justice in an effective and cost controlled fashion. Provided the LSC is satisfied that it has had proper disclosure in support of an application for legal aid then that ought to be sufficient for most cases.
Question 12. Do you agree that final determinations should be with Special Cases Unit for the cases they manage? Should this change be limited to the Special Cases Unit?
The Association disagrees with this proposal. The experiences of most members show that it is not believed that case managers have the necessary experience and ability to be entrusted with such serious decisions. This Association has no comment to make at this stage on this proposal, but would have liked to have seen a more detailed analysis and explanation of the working of this scheme to date, in order to see whether this is a problem that does need attention.
Question 13. Do you agree that, in community actions, in considering the proportion of costs that the community should contribute, the proportion of the population eligible for civil legal aid should be the starting point? If not, what alternative would you suggest?
Comments:
Question 14. Do you agree with the proposal to remove advice on treatment from the scope of the CDS? Please provide supporting reasons for your answer. Are there any circumstances in which you believe prisoners should be able to seek advice on treatment issues and which would not be captured within the scope for civil legal aid funding? Please provide supporting information.
This Association opposes the proposal. The reason prisoners have been entitled, and ought to be entitled, to legal representation in such matters is because the Prison Service historically and to date has shown that treatment of prisoners is not a sufficient priority and there are still many prisons where the culture appears to be inappropriate for the 21st century. Please see additional comments at question 5 above.
Question 15.Do you agree that we should remove the delegated powers of civil and crime providers to self-grant funding for judicial review cases, and that these funding decisions should be made by the LSC instead? Do you agree with the alternative proposal to grant delegated powers to individual approved providers? Are there particular types of judicial review for which delegated powers should be retained?
Before coming to any fixed view on this proposal the Association would have liked to have seen some proper analysis rather than what appear to be bogus statistics in the second paragraph of section 6. The statistics given do not seem to have any relevance to the issue that is being discussed. The MoJ is therefore asked to supply proper statistics and other information in order to set out the extent of the “problem” in order that constructive criticism or support can be given.
Question 16. Do you agree that there should be restrictions on legal aid for non-residents? What exceptions or safeguards should apply? Do you agree that funding should continue to be available for the proceedings listed? Are there other areas of law for which funding should remain available?
In order to have any views on this proposal there is a need for proper disclosure of information in order to show the extent of the perceived problem, the types of cases that are supported and what outcomes have followed. Without an analysis the proposal should not proceed, as there can be no informed debate.