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Chief justice says ‘strong and honest’ debate needed  on which cases should be funded by legal aid
Chief Justice Frank Clarke and Legal Aid Board chairman Philip O’Leary Pic: Fennells

24 Jan 2020 / justice Print

'Strong and honest’ debate needed on legal aid – Clarke

Chief Justice Frank Clarke said last night that a significant improvement to the system of legal aid is both necessary and justified.

Speaking at an event to mark the fortieth anniversary of the Legal Aid Board at the Technological University campus in Grangegorman in Dublin 7, he said that environmental law, immigration law and European Arrest Warrant cases are significantly more complicated than previously.

Income thresholds

He said there is a “powerful argument for a significant review of income thresholds” used to determine entitlement to civil legal aid.

But improvements in civil legal aid are unlikely to top the political agenda any time soon, in the face of competing demands from the health service and the homelessness crisis, he said.

He also said that even an enlarged civil legal aid budget must always prompt difficult questions about the chances of success of any case and the proportionality of spending public funds on litigation.

This requires “strong and honest debate” about how not to exhaust even enlarged funding pools, the chief justice said.

“Government has many mouths to feed.  

“In order to secure a better place at the table we need structured proposals which will indicate that we do not have an insatiable appetite,” he said.  

Complex litigation

Since litigation is becoming more complex, the rights of individuals may not be fully vindicated because of a lack of civil legal aid, he said.

And while the ‘no foal no fee’ system of lawyers taking a case – understanding they will only be paid if they win – has attracted criticism for feeding ‘compo culture’, a great deal of litigation is brought forward only under the existence of this system.

“Without it, significant costs would fall to the taxpayer,” the chief justice said.

He said that ‘no foal no fee’ has worked as a business model, because there are limitations on the type of cases that are brought – and they are only taken against a significant entity which could meet an order for costs, or what is known in the trade as a ‘mark’.

Outlays

Nowadays, the ‘no foal no fee’ system is less effective because there are not just legal fees at stake but rather substantial outlays in running a case.

“It is one thing for a lawyer to take the risk of working without pay.  It is another thing altogether for the same lawyer to have to pay out a significant amount of money for things like expert reports on the risk that, if the proceedings are not successful, that money will never be recoverable,” he pointed out.

There has been a narrowing of the legal areas that lawyers will take on in this manner, he said.

“If measures were to be adopted which outlawed or curtailed [no foal no fee], it would inevitably follow that a very significant cost would have to fall on the taxpayer in providing legal aid in the many types of cases which are only brought today because of that system being in place,” he said.  

Reforming measures

Digital upgrades to the courts system, which are now in train, will make access to the courts cheaper and more efficient, the chief justice pointed out.

These will come into play along with the review of civil procedures, being led by Mr Justice Peter Kelly, which will report shortly.

In tandem, these reforming measures will make access to justice simpler and less costly.

Legal aid will inevitably form a big part of any programme to improve access to justice, but different types of legislation will always cost different amounts of money.

“There is not one financial size that fits all,” the chief justice said.

Complex

However, “litigation in the near future will still be more complex than when I started practice,” he observed.

In the forty years since the establishment of the Legal Aid Board there are now very many more categories of potential litigation, he said, in particular laws coming from the EU which make previously simple cases more complex.

“One consequence of the increased complexity of modern litigation is that it places a much greater burden on those conducting it which in turn increases the cost for those who have to pay for legal representation,” he said.

Litigants-in-person

Litigation is more efficient when both parties are properly represented. An increase in ‘litigants in person’ should not disadvantage the legally represented person, the chief justice said.

At last night’s event, Legal Aid Board chairman Philip O’Leary said the body faced difficulties in offering competitive financial rewards to solicitors, and this had a knock-on effect in recruiting and training.

He said there might be only twelve applicants for a position and not all of them would be entirely suitable.

Criteria

He said that means-tested eligibility criteria mean the body cannot fully serve its constituency, because of the income threshold of €18,000.

The Legal Aid Board sought additional funding of up to €4m last year but actually received €1.4 million.

The Legal Aid Board was established in 1979 following recommendations by a government established committee.

It now employs 470 staff in 33 law centres and 16 family mediation offices.  It has provided legal assistance to almost 600,000 people since its foundation.

 

 

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