Dispute Resolution

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Paying for legal services

• As well as there being inadequate funding, people don't realise what rights they have

Historical development:

• 1949: first state-funded legal aid scheme

• Now administered by Legal Aid Agency, under control of MoJ

• Legal Aid, Sentencing and Punishment of Offenders Act 2012 drastically cut legal aid

Subject area:

• Must be listed in Schedule 1 of Legal Aid Act 2012

• Civil legal aid basically all gone:

  • life or liberty must be at stake

    • In these cases funding is provided for mediation rather than a case

  • Civil areas covered: environmental law, asylum, mental health and child welfare and judicial review

  • Actually contravenes Art. 47 of European Charter of Fundamental Rights (calling for member states to provide civil legal aid to those without means)

• Civil Legal Advice - national telephone service providing free legal advice

• Criminal Defence Direct - free telephone advice for people detained by police for non-imprisonable offences (rather than paying to call a solicitor)

• Criminal legal aid:

  • Means test reintroduced for Crown Court cases in 2010

  • Public defenders - directly employed by the Legal Aid Agency

    • Hugely criticised by Bar Council & Crim. Solicitors Assoc; says it prefers administrative convenience to justice; not independent enough from the government

    • Strangely more expensive than private practice at the moment

  • No legal aid for defamation

• Where legal aid is unavailable to a client who cannot afford representation, it might amount to a breach of Art. 6 Convention rights

  • McLibel Two case: Steel v United Kingdom 2005: activists distributing leaflets outside McDonald's sued and denied legal aid (not available for defamation). Ordered to pay 60,000 (later 40,000) in damages. ECtHR upheld challenge against fairness saying English court had breached Art. 6 as well as breech of freedom of expression under Art. 10

Alternative funding:

• Conditional fee arrangements (no win no fee)

  • ‘Uplift’ if case is successful

  • Naomi Campbell used a huge conditional fee arrangement to sue the Mirror for defamation (conditional fee arrangements not means tested)

  • Historically, if you were awarded costs then the other side pays the higher 'win' rate

    • Extra cost for losing party is perhaps excessive

    • Legal Aid, Sentencing & Punishment of Offenders Act 2012 has limited CFA’s application

      • Fee uplift is now paid by the claimant

      • Cap of 25% success fee for personal injury

        • Motto v Trafigura 2011 – 100% success fee was reduced to 58%

• Contingency fees

  • lawyers would receive a share of the successful claimant's award of damages (lawyer receives nothing if they lose)

  • Unlawful before 2012

  • Qualified one-way cost-shifting rule QOCS – if D loses, he pays C’s costs, but is C loses, they pay their own costs

Third party funding:

• Some investors agree to back litigation costs (for cases in which they have no interest) on the agreement that they receive some of the damages

  • Only legal if third party clearly are not interfering with the litigation

Class actions:

• Multiple claimants for the same issue

• Much harder to bring than in US

Lord Carter report 2006:

• Recommended price-competitive tendering i.e. giving lots of legal aid cases to large law firms in one contract

• Recommended paying by case not by hour

• Coalition implemented this in 2014

The criminal trial process

• Adversarial process: each side responsible for putting their own case

  • Alternative is inquisitorial system typical in Europe, where the judge plays the dominant role in evidence collection

• Criminal Procedure Rules 2005: strong emphasis on case management from the judge

  • Updated twice a year by Rules Committee

  • R v Clarke and McDaid 2008: appeal against conviction allowed where there has been a breach of a technical procedure which does not amount to meaningless formality

Prosecution:

• Crown Prosecution Service (CPS) started 1986 to take prosecutions away from police

  • Run by Director of Public Prosecutions (DPP)

  • Annual report made to Attorney General

  • Split into Criminal Justice Unit for straightforward cases

  • & Central Casework for more complex cases

  • CPS prosecutors carry out advocacy themselves in Crown Court: known as associate prosecutors

  • Criminal Justice Act 2003: moved decision whether to charge from police to CPS

  • CPS decisions based on the Code for Crown Prosecutors (comes down to 'realistic prospect of conviction')

  • Also takes into account public interest

• Prosecution of Offences Act 1985 S. 6 allows private prosecutions

  • PC Joy against MP motor offender

  • BUT DPP may choose to take over the case then discontinue it - it is the right to start a prosecution more than the right to continue

    • R (on the application of Gujra) v Crown Prosecution Service 2012: private prosecution taken over by CPS when felt there was a reasonable chance of success

• Certain offences can only be brought with consent of AG or DPP

  • e.g. assisted suicide prosections (Debbie Purdy v DPP)

  • AG has power to stop proceedings that would be brought before the Crown Court (nolle prosequi)

    • Justice Richard Gee trial: accused of 1m fraud & his trial was stopped by DPP entering a nolle prosequi

Trial process:

• Summons calls person charged with an offence to court

• Where maximum penalty is less than 3 months can plead guilty by post

• Summary offences:

  • minor crimes triable summarily in magistrates court

• Indictable offences:

  • More serious offences that can only be heard in Crown Court (e.g. rape and murder).

  • Indictment document contains alleged offences supported by brief facts

  • Only appear before magistrates once in a ‘sending for trial’ hearing & then sent to Crown Court

• Triable either way:

  • Defendant's discretion, and if they don't mind then magistrates decide (eg theft and burglary)

  • Most defendants want a jury trial in crown court

  • Plea given before mode of trial decision

• Plea & case management hearings

  • ...

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