The ‘May fees update’ from the Family Law Bar Association has now hit our email boxes.
The FLBA warns us in no uncertain terms to take heed of the proposed changes for public funding in criminal cases set out in the government paper ‘Transforming Legal Aid: delivering a more credible and efficient system‘ , and to see this as a “far reaching” proposal that may go on to deny ‘the most vulnerable members of our society access to specialist legal advice’.
Clive Baker, in his detailed response to the government paper links back to the effect of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). There he cites a cut of £350m per year affecting 600,000 people. He suggests that LASPOA was the start of ‘work in progress’ to trim the legal aid budget for family work rather than the end of the matter.
So, has the FLBA got it right. Is Armageddon just round the corner for both the legal profession and the public they serve?
Chris Grayling, Lord Chancellor and Secretary of State for Justice subscribes to a simple view concerning the funding of criminal cases,
“Over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world”.
The blogger has memories that exceed the ‘past decade’ and is tempted to say that since public funding has been available ‘it has always been thus’. Indeed, the blogger’s favourite legal friend Matthew Shardlake interfaced with the same frivolous claims, wealthy criminals and exploitative lawyers in the 16th century. It could be said that ‘where there are lawyers, there will always be conflict’.
The doomsday practitioners gather sustenance from Lord Justice Ward in Wright v Michael Wright Supplies Ltd  EWCA Civ 23416, who at para 2 addresses one of the consequences of withdrawing public funded legal advice:
“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. …. how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved”. ” It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. …. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”
But an essential question is not whether the court is able to cope with litigants in person, but whether the system should direct them there as the most appropriate venue to resolve their dispute?
Blog readers by now will know of my views on the importance of mediation and private arbitration. You will also have read of my views about the relevance of an adversarial process in family disputes, and questioning the need for parents in conflict to have ‘party status‘.
Has Lord Justice Ward missed the point as he reaches his 18th year aboard the Court of Appeal? Is it necessary, or even advisable to have lawyers directing proceedings from the beginning of a dispute to its end? And should the public carry the bill?
Should he not reflect back on Lord Woolf’s comments in Cowl v Plymouth (2001) EWCA 1935 at para 25:
“Without the need for the vast costs which must have been incurred in this case already being incurred, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible”.
There is something singularly unattractive about a profession as well paid as ours, raising principled arguments concerning the withdrawal of our publicly funded income.
Whilst the points are well made, surely the art now is to raise them subtly, record them, and work positively and creatively with a popular, democratic idea. Should it fail, of course we will be there to pick up the pieces.