Law: Our Learned Friend: Tough words on legal aid

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The Independent Culture
AS THE Lord Chancellor led his judges into Westminster Abbey yesterday for the Opening of the Legal Year, he may have been in reflective mode. He may have remembered that, almost a year ago, he announced the withdrawal of legal aid from most civil disputes. He may have been reflecting that it has all proved more difficult than he had expected.

Challenged by the Law Society, which doubted his powers to bring in some of his proposals without primary legislation, Lord Irvine has had to wait and include those in a Modernisation of Justice Bill. "No win, no fee" arrangements, which he had confidently expected to replace legal aid in all cases where money or damages are claimed by last April, turned out not to be so straightforward.

Conditional fees have worked well in nearly 40,000 personal injury cases since their introduction in 1995, but research by Sheffield University's Institute for Study of the Legal Profession showed earlier this year that if legal aid were not available for any personal injury cases, those with more complex claims would be unlikely to find a solicitor who could afford to finance the case on a conditional fee basis. In addition, the net cost of legal aid was pounds 43m below the Government's estimate, undermining its case that legal aid spending is out of control.

So, what might Lord Irvine ponder for the year ahead? There are some less dramatic reforms, such as protecting medical accident victims by restricting legal aid to solicitors who can demonstrate competence and quality standards. But exclusivity is likely to prove controversial. The Government also has to tie in legal aid changes with reforms to civil litigation recommended by Lord Woolf in his Access to Justice report.

One of Lord Woolf's themes was the effective resolution of disputes without involving the courts. It is ironic that legal aid is still not generally available for mediation in commercial cases.

Earlier this year, Gerald James, the former managing director of Astra Holdings, forced the DTI to stop proceedings to disqualify him as a director - proceedings which had been brought against the advice of the previous government's inspectors. Without legal aid, no one would have been able to discover the truth or to force the Government to stop the proceedings and pay all the costs.

Perhaps when he returns to Westminster Abbey next year, Lord Irvine may be able to look back on some undramatic, but important improvements in legal aid rather than headline-grabbing success in abolishing civil legal aid.

Andrew Lockley is the head of professional services at law firm Irwin Mitchell