Lord Justice Jackson delivered two significant speeches last week whilst I was supping Tequila in Mexico. Most of the coverage has, rightly, focussed on his proposals for fixed fees in all civil cases up to £150k.
His second speech on 2nd February was headed ‘The Case for a CLAF’. This is about a Contingent Legal Aid Fund to improve access to justice. The idea of a CLAF has been knocking around for most of my 30 odd years in the law. It raises its head whenever traditional legal aid is under threat. I first came across it when I worked in a Law Centre in the 1980s.
The simple idea is that such a fund would back ‘deserving cases’ for those who do not have the means to fund litigation. In some ways it works in a similar way to Civil Legal Aid. The Fund supports the case and is then reimbursed from costs recovered by the successful party. On top of this a slice of the damages goes into the fund. This contribution is the basis for the funding of the scheme.
In his original report, Jackson was equivocal. In his recent speech he has called for the Legal Profession to set up working parties to take the idea forwards and called upon the government to give ‘appropriate’ words of encouragement (!).
I have to start out by saying that any scheme that improves access to justice has to be considered. But there are concerns.
When the idea has been mooted over the years one objection has been that it leads to a reduction in damages. This was touched on by Jon Robins in the Law Society’s Gazette back in 2011.
At that time a client who was covered by a CFA faced no deductions. But the world has changed since then. Most firms now accept the commercial necessity of taking a cut of up to 25% damages from damages since the recoverability of success fees was abolished in 2013. I expressed major worries about this at the time. But to be honest, I have not had a single complaint from a client. If lawyers can take a piece of the cake then why not have a legal aid fund which does the same in order to avoid injustice? So perhaps this is not the concern that it was.
But there are still problems. The first concerns those cases that would be covered. I doubt that any assessment of a deserving case would include one for which a CFA is available and which lawyers are willing to take on. A CLAF certainly has no role to play in crucial areas such as welfare benefits or family work. So who will actually benefit?
It will inevitably be limited to those cases which can produce some compensation from which a slice can be taken. But they will also be those cases which cannot be backed by a CFA. So will only weaker cases be eligible? And if it only these cases, will they produce sufficient income to maintain a viable scheme?
It could be argued that the fund could cover those non personal injury cases to which QOCS doesn’t apply. But that then begs the question; who pays the adverse costs in losing cases? Jackson himself touches on this in his 2nd February speech. If QOCS is extended to other cases then they no longer need any special fund.
I am not dismissing the idea.
Anything that offers some streams in the desert is to be welcomed. But this will not have any great impact on access to justice generally. Unless and until we have a fully funded legal aid scheme them such access will remain a waste land.