Nearly 40 years after the possibility of setting up a contingency legal aid fund (CLAF) to promote access to justice was mooted, its future is looking less certain amid ‘substantial confusion’ over its purpose and viability.
The Law Society, which set up a working group this year with the Bar Council and Chartered Institute of Legal Executives to examine the potential for a fund, said investigations show a ‘substantial confusion over the nature and purpose of a CLAF, with mixed views as to its use and viability’.
The purpose of the group is to see whether a CLAF is a worthwhile option to complement existing forms of litigation funding, to provide access to justice at a lower cost or in ways not yet provided by other means.
Initial findings show that substantial seed funding and a rigorous merits test would be needed. Funding of low-value cases would be problematic.
Administrative costs could be prohibitive unless the CLAF is run by an established organisation or litigation funder.
The idea of a CLAF has a long pedigree. In 1978 human rights campaign group Justice published its original proposals for a CLAF.
In 1997, in the run-up to the removal of personal injury cases from the scope of legal aid, proposals for CLAFs were made by the Bar Council, Law Society and Consumers’ Association. However, none of the proposals were implemented, with the government instead promoting conditional fee agreements under the 1999 Access to Justice Act reforms.
Earlier this year, Lord Justice Jackson told a conference that the growth of third-party litigation funding showed that a contingent fund could succeed.
However, Lord Dyson, speaking as master of the rolls at the time, warned that the rock on which the idea foundered when it was last considered ‘was the lack of money to provide the seed core’. Dyson feared this could happen again, though he thought the fund was an excellent idea in principle.
In light of the latest findings, the Society is seeking views on the viability of a CLAF and the proposals for implementing it.
Solicitors can complete a 10-minute survey, which closes on 9 January.