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Thu, 25 Nov 2010

Redressing the balance of fairness?

Much has been written about the Government's recent announcement regarding the extent of cuts to be made to the legal aid budget. Most coverage has been given to those who have vigorously suggested that reducing the spend on legal aid by £350 million drives a stake into the very heart of that fundamental principle of equality of justice for the poor and helpless.

It should perhaps be remembered that the total budget for legal aid has been rising dramatically year on year and presently stands at £2.1 billion. Sustaining that level in the current economic climate is simply not possible.

Those less inclined to knee jerk reactions (or self preservation) recognise that something had to be done. Yes, some people who might once have been eligible for legal aid may no longer be and if that, of itself, were to prevent legitimate legal action being taken that is very unfortunate.

However, there is no perfect system. What needs to be acknowledged is that the present state of affairs has invited widespread abuse with legal aid being avaialable, and obtained, for cases where there is no real legal issue or principle in dispute. In certain respects legal aid lacks fairness as successful defendants are unable to recover thier legal costs. Legal aid puts the claimant in a no-lose position. In addition, legal aid has been too readily available to people with, by any objective assessment, little hope of success. The current system too often fails to provide an appropriate check or balance to ensure that only those with deserving cases should have access to public money to fund them.

In this respect there are obvious parallels with the Government's proposed crackdown on the operation of Conditional Fee Agreements, particularly in personal injury claims. The irony is that CFA's were developed as a consequence of the last major spending review of the legal aid system.There can be no doubt that the present CFA system has failed to put the respective parties on a level playing field. Too often only one of the parties actually has any financial risk. It cannot be right that claimants are able to pursue their claims, even the clearly unmeritorious ones, without having to prove that they have the financial means to pay the defendants' costs where they lose.

This simply encourages claimants to speculate knowing that there is no sanction or penalty if they lose. All the risk and financial burden is transferred to the defendant who, faced with potentially time consuming and expensive litigation (and knowing that even a win might not guarantee a full recovery of its costs) decides that commercially it is better to settle than fight. Where is the justice in that?

Many will therefore welcome the Government's proposals to reform both CFA's and legal aid which hopefully will reduce the number of speculative actions and curb the enthusiasm of some legal practioners to exploit the system, essentially, for their own gain.

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