The ‘time is ripe for action’ on creating a Contingency Legal Aid Fund (CLAF), according to Lord Justice Jackson, architect of the government’s reforms of civil litigation costs. ‘There is clearly a strong will among many in the legal profession to make such a scheme work,’ he said.
Jackson’s comments came in his second lecture on the implementation of the reforms that he piloted, delivered last Saturday to the Professional Negligence Bar Association. He focused on the question of creating a CLAF (or CLAFs) and a Supplementary Legal Aid Scheme (SLAS).
It is only now, when the abolition of recoverable success fees has been confirmed, that such a venture becomes possible, he stressed.
The idea of a CLAF has been floating around the legal policy world for over three decades, and resurfaced as a possible access to justice solution in light of government plans to slash legal aid and reform conditional fees through the Legal Aid, Sentencing and Punishment of Offenders Bill.
Both a CLAF and SLAS are self-funding schemes. The former would be fully self-financing and freestanding, while the latter would be self-funding but tacked on to the legal aid scheme and administered by the Legal Services Commission.
The Ministry of Justice has announced its intention to create a SLAS under which a fixed percentage of 25% of the client’s damages awarded in legally aided proceedings is repaid to the legal aid fund. Jackson is concerned about this, since it is planned to be a fixed deduction in every instance, even if the case settles immediately; not a maximum deduction, as is proposed in the case of personal injury CFAs.
He compares this with Hong Kong’s SLAS, under which the deduction is 6% of damages if the case is settled before delivery of the brief for trial.
‘I hope that once the MoJ’s proposed SLAS has been established it may prove practicable to operate on the basis of a lower deduction,’ he added, suggesting that a ‘sliding scale’ approach might be appropriate.
Jackson said that he tried to create a workable financial model for a CLAF during his costs review, but failed, partly due to resource constraints. The MoJ, meanwhile, has expressed concern that a CLAF may only be able to support a small number of cases and these would need to have high prospects of success.
The bar, which has always been the CLAF’s chief advocate, recently picked up the baton by launching a working group to explore the viability of a such a fund, chaired by former bar chairman Guy Mansfield QC.
Alluding to this work, Jackson declared that it ‘really ought to be possible’ to set up one or more viable CLAFs, though ‘at least for now’ any CLAF would have to operate on a small scale and possibly in a closely defined area (clinical negligence has been mooted).
He does not believe CLAFs would undermine other funding mechanisms such as reformed CFAs, adding: ‘Competition can only be healthy.' Nor does Jackson think personal injury cases should necessarily be excluded from CLAFs; they are not excluded in Hong Kong.
He concluded: ‘Given the changed landscape [post-LASPO] after October 2012, the time is now ripe for action. If the Bar Council decides to move from the drawing board to implementation, I hope the specialist bar associations will see fit to lend their support.’
No comments yet