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Is there still “Access To Justice” for all ?

14th November 2014

For many years England and Wales were able to boast one of the most comprehensive systems of Legal Aid in the world. It provided top class representation to people with genuine problems that required the involvement of the courts.  However, this system has been eroded over the years for reasons of affordability.

In April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect and brought an end to the vast majority of Public Funding (Legal Aid) for civil (i.e. not criminal) work.  Overnight, funding for divorce, child contact, welfare benefits advice, employment law, clinical negligence claims and housing law was withdrawn except in very limited circumstances.  As a result, more and more people are unable to obtain the help they need in dealing with complex cases before the courts .However it may be said that given the recession and budgetary constraints across the economy there was no alternative.

There is anecdotal evidence to the effect that these cost saving measures have led to an increase in costs elsewhere by virtue of the fact that litigants in person (people who represent themselves in court) are beginning to slow down the operation of the courts.  There is also ample evidence of individuals with potentially life changing legal problems being unable to access professional legal advice.  Some of these, unable to rely on family or friends to assist them, have turned to a ‘McKenzie Friend’.

Since 1970 the UK courts have allowed an unqualified individual to sit alongside and assist a litigant providing them with advice and guidance during the course of litigation.  Since April 2013 there has been a growth in ‘professional’ McKenzie Friends who, whilst not qualified lawyers, charge a fee to assist litigants in person. Whilst many are well motivated, the professional McKenzie Friend is wholly unregulated.  In simple terms you have no redress if you are unhappy with the conduct of your ‘McKenzie Friend’.  You have no guarantees that they are competent to give any advice or that they are insured in the event that they provide you with negligent advice.  In April of this year the Legal Services Consumer Panel produced a report on fee charging McKenzie Friends’ which included amongst its recommendations that fee charging McKenzie Friends’ should be recognised as a legitimate feature of the evolving legal services market.

The legal system in England and Wales has faced many changes in the last 20 years, most of which have been driven by a desire to cut costs, but at what price?

 

 

Ian Oliver

Partner – Litigation

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