Costs: Master of the Rolls supports ring fencing civil legal aid to ease 'appalling pressure'

The government's 'failure to control criminal legal aid' has put 'appalling pressure' on the civil system, the Master of the Rolls said this week in an exclusive interview with the Gazette.


In his first media interview since his appointment last October, Sir Anthony Clarke said civil legal aid has become the 'poor relation' to the criminal side.


Sir Anthony said he would support ring fencing the civil legal aid budget. He said: 'Anything which helps to protect civil legal aid would be a good thing. In the civil [system], we are regarded by the government and the Legal Services Commission (LSC) as the poor relation.'


He added: 'The real problem is the failure of the government to date to control criminal legal aid. We are hoping that Lord Carter will be able to provide a framework for a solution, but if he does not, then there are serious problems because the overspend of criminal legal aid has put appalling pressure on the system, with the result that costs are having to be cut on the next financial year, including the cost of operating the civil court. '


Sir Anthony, who as Master of the Rolls is also chairman of the rules committee that would be empowered with introducing changes to the funding of litigation, said he is 'open minded' to new ways of reducing the cost of litigation. He said he is 'in favour of looking as carefully as one can' at extending fixed fees currently used in road traffic accident cases to employers' liability cases, and to the period after issue and before trial. The fees are currently only used for the period before proceedings are issued.


Sir Anthony said he is also 'interested' in proposals for costs budgeting and enforceable estimates, but conceded there were 'practical difficulties'. He added that conditional fee agreements (CFAs) were 'working well' in personal injury litigation, but he was 'worried' about solicitors claiming a 100% uplift. 'When [CFAs] first started, the uplift was more in the region of 25%,' he said.


The Master of the Rolls backed recent calls for a limitation on disclosure to control costs (see [2006] Gazette, 16 March, 1). He said: 'The amount of disclosure has been one of the banes of modern litigation... I agree [with Lord Justice Neuberger] that we should be trying to limit that as much as we can. Lord Woolf has already taken some steps there... but we could narrow it more, because the cost and time spent is disproportionate.'


He added that the Civil Justice Council, of which he is chairman, is also looking at a contingency legal aid fund. 'That could be well worth thinking about... There is an issue over who will prime the fund, and it might be possible to discuss with the LSC some kind of funding mechanism for that.'


The full interview will appear in the 20 April issue of the Gazette.