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Public bodies should pay costs and surcharge if decisions overturned: Law Society

Public authorities including councils should pay the costs of claimants to the legal aid fund together with a surcharge where their administrative decisions are overturned by courts and tribunals, the Law Society has proposed.

The proposal is part of a wider paper Chancery Lane has published on affordable access to legal advice. One of the aims is to build incentives and disincentives into the system in a bid to reduce the number of cases that require legal advice and representation.

The Law Society said exceptions could apply where the issue concerned involved a complex area of law. This approach already applied in personal injury cases, it added.

Chancery Lane also recommended that:

  • Courts use their powers to fine public authorities and others “who cause costs to be incurred by the legal aid fund and solicitors”;
  • Public bodies be encouraged to comply with court orders and directions. “Cases that are cancelled at the last minute or become ineffective due to non-compliance by public bodies increase costs. These costs often fall on the legal aid budget. The threshold for making those responsible meet these costs should be lowered so that the legal aid budget is not hit.”

The Law Society’s publication, Affordable Legal Services for Everyone: The Law Society’s Perspective, and the full review it submitted to government can be viewed here.

The documents also include recommendations relating to:

  • Improving the way the courts work. These include: a full review of the process for civil cases, particularly for low value cases; and training of judges to use modern case management procedures to ensure that cases progress efficiently and that unnecessary costs are eliminated. As many administrative hearings as possible should be conducted by telephone, email or videolink;
  • Solicitors working differently. The Law Society said it supported “firms taking individual approaches to the way in which they provide services, provided that the basic issues of competence, ethics and standards are not compromised”. Chancery Lane has published a practice note on “unbundling”, where the different parts of legal help are divided in relation to a case and clients are given the option to ask for help with only some of those parts;
  • A proper, supported role for free legal advice. Consideration should be given to a system, using pro bono solicitors, which helps clients decide what type of legal service they require. “This could be done via face-to-face one-off appointments, drop-in clinics, telephone advice lines or through a web-interface”; and
  • Appropriate funding for affordable justice. The Law Society recommendations include: a review of the effects of changes to the civil justice system “to put the victims of negligence and other civil wrongs back in a position where they can properly enforce their legal rights”; any further increase in the small claims limit in non-personal injury cases be cancelled and active consideration be given to reducing the limit back to £10,000; and alternative methods of funding be encouraged.

The Law Society said: “Affordable access to legal advice is a basic right for everyone. Justice is at risk when expertise is needed to deal with complex or contested legal issues and the person does not have the resources to pay for legal representation.

“There are significant benefits to getting professional legal advice, but recent changes have made it more difficult to get legal help.”

Chancery Lane also suggested that there was a strong economic case for reversing many of the cuts arising out of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and doing so in a way that would enable citizens to assert their rights.

“Solicitors have a key role to play in the administration of justice and we wish to keep it that way,” it said.