Monday, 15 November 2010


The Govt has published a Green Paper on reforming legal funding.  On the civil side legal aid will no longer be available for:

  • General Tort actions
  • Clinical negligence (general personal injury is already out of scope)
  • Consumer and general contract
  • Welfare benefits
  • Criminal injuries compensation
  • Debt where home not at risk
  • Insolvency
  • Education
  • Employment Appeal Tribunal (Employment Tribunals were always out of scope)
  • Housing save where home at risk, or homelessness appeals or disrepair
  • Cash Forfeiture under POCA
Plus expert evidence legal fees are to be re-structured and cut.

In lieu of legal aid there will be more CFAs plus the Govt is consulting on seizing the interest on solicitors' client accounts in order to build up an alternative legal aid fund.  

This paper also heralds accepting Sir Rupert Jackson's reform to abolish the recoverability of success fees in CFAs (the uplift on fees  - usually 100% - which the losing litigant has to pay) and instead to allow lawyers to steal up to 25% of damages recovered by a client to pay their fees (coupled with a 10% increase in general damages).  These are the contingent fees beloved of American Plaintiff Trial Attorneys and which we traditionally considered to be criminally abhorrent and deeply unprofessional.  But times are hard and needs must and now a Court of Appeal judge thinks they are faute de mieux.  The Govt have realised that if they implement that reform it would actually be better to be on legal aid - because then you get to keep all your damages.  So they say that the Govt would also seize 25% of damages from a legally aided litigant and use this to fund other legally aided cases - the Supplementary Legal Aid Scheme (SLAS which would need some public money to start up - the privatised system which would use private start up money (and which is promoted by the Bar) is called CLAF which is also being considered).  

Sir Rupert also wants to abolish After The Event Insurance (ATE) - insurance that CFA funded litigants take out to pay the other side's costs when they loose.  The problem is that the other side has to pay enormous premiums (£3.5 Million in one group action alone - which was paid by a government defendant - if the Govt had given the claimants legal aid then the Govt's costs on losing would have been much lower!) if they lose - Sir Rupert would cure this by ending 2 way cost shifting - the Defendant would usually pay their own costs if they won (if they lost they would continue to pay their own and the other side's costs).  Interestingly enough The Green Paper also pushes Before the Event (BTE) insurance -which lots of people have bolted on to their household and motoring insurance policies and which seems to be being promoted as the middle-class alternative to legal aid and CFAs.  

The Govt will still provide legal aid in exceptional cases in order to maintain article 2 and 6 compliance:
Significant public interest will be required for representation at inquests.

It's all here to read in full.

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