Start on the premise, as a solicitor told me plainly, "that there ain't any (legal aid)", then you will move forward with clarity!
Already on this site, I have commented on Christopher Jefferies (who was falsely accused of the murder of Jo Yeates). One of the best known legal firms 'Carter-Rock', commented on the December 2014 docudrama 'The Lost Honour of Christopher Jefferies', aired about his arrest, and how it "ably negotiated the underlying legal issues, not least in one quiet line, uttered by Jefferies’ solicitor when the former English teacher is deciding whether to sue the newspapers which treated him so egregiously.
“A CFA – a conditional fee arrangement – the lifeline to the common man,” says the solicitor, in answer to Jefferies’ question about how he will afford to instruct libel lawyers. It is salutary to remember that without a CFA, Jefferies would almost certainly not have been able to take on the press and recover his honour.
Today, much of the former 'poor mans legal redress' processes are no longer available and the 'legal aid' system has been restricted to:
- Consumer (eg you’re denied service due to your sex or race)
- Debt (eg bankruptcy, mortgage debt)
- Discrimination (eg you’re treated unfairly due to your sex, race, etc)
- Education (eg special educational needs)
- Employment (eg unfair treatment at work)
- Family (eg divorce, separation, contact with your child)
- Housing (eg eviction, landlord harassment)
- Immigration (eg advice about asylum)
- Welfare benefits (eg disagreeing with a benefits decision)
Actions against the Police or public servants will not be supported by any 'legal aid', unless you can put a very persuasive argument forward that it is in the public interest. Having searched the internet extensively, there has not been made public any details of legal cases of liability or litigation, against the Police supported with 'Legal Aid'. A ruling by The Honourable Mr Justice Dingemans (in November 2014 for 'Legal Aid') gave hope for parties wishing to pursue action against the Police for false arrest and detainment, but in this ruling, it recognised that this type of challenge is not an open cheque for others to take to law expecting it to be supported by the state.
An alternative route to funding, until April 2013 was a conditional fee agreement (CFA). Some refer to this as a 'No win, No fee' case.
I do not understand the mechanics of this process, but I am aware that the changes on qualifying rules about solicitors fees have had a significant impact on cases being underwritten this way. From 1st April 2013, where parties fund their litigation via conditional fee agreements (CFAs) and/or after-the-event (ATE) insurance, the CFA success fee and ATE premium are no longer recoverable from the losing opponent if the case is successful. Parties can still enter into CFAs and take out ATE insurance to fund their litigation but have to bear the additional costs of doing so. The consequences of this is that many solicitors are no longer prepared to offer a CFA.
Anyone who enters into a CFA with their legal specialist, where the solicitor is paid up to double the normal fee if the case is won and nothing, or sometimes a discounted fee if the case is lost. The uplifted fee is called a success fee, and it is capped at 100%.
With increasing litigation there became a view that this placed an excessive costs burden on opposing parties, whose costs liability could become grossly disproportionate if they contested the case to trial and lost. The defendant’s costs liability could be up to four times the “normal” costs of a party to the litigation, in that they would have to pay:
- their own legal fees and disbursements;
- the claimant’s normal legal fees and disbursements;
- the claimant’s success fee of up to 100% normal fees; and
- the claimant’s ATE premium which (for a deferred and self-insured policy) could be in the region of 90% of the sum insured.
Lord Justice Jackson took the view that this needed to change, and so recommended that recoverability of CFA success fees be abolished. The government adopted this recommendation, citing the need to “reduce the unfair costs suffered by the many businesses, individuals and other organisations (including the NHS) that have been faced with CFA actions” and restore greater proportionality to the costs of civil cases.
My impression is that only really 'rock solid' cases, mainly medical negligence cases, are supported by solicitors through a CFA process, hence we have seen a massive increase in health-related injury claims, where rarely is the outcome anything other than 'Win-Win' and little risk of any claim being rejected; this can be attributed to high levels of accessible evidence to support any claimant.
Whereas other forms of civil litigation always have an element of 'risk of failure'.