The Ministry of Justice response to the ‘Legal Aid: Refocusing on Priority Cases’ consultation is now out, with the MoJ’s final proposals [link to pdf]. Although the responses to the consultation appear to have been pretty universally negative, the MoJ is going ahead anyway.

The report announces that ‘We share the view of Lord Justice Jackson that legal aid should remain in important areas like housing and judicial review.’ However, it appears that in order to save legal aid it has now become necessary to destroy it, bit by bit. The headline changes are:

Improve the way that cases involving human rights or public interest are handled by transferring cases that depend on these issues to receive funding to a new committee for advice on their merits. This will help to ensure that legal aid is awarded to meritorious cases.

Ensure that cases granted legal aid on the basis that the proceedings will bring benefits to others have a realistic prospect of delivering such wider benefits.

Detect fraudulent legal aid applications earlier, by checking with the unfunded opponent to ensure that the applicant is financially eligible for legal aid, with safeguards for domestic violence or urgent cases.

Tighten the funding rules for granting legal aid for judicial review cases to ensure that funding is directed towards meritorious cases.

Restrict funding for low-value damages claims brought as part of a multi-party action. This will help to ensure that limited resources are available for higher-value cases, or cases brought by individuals.

Tighten access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, with safeguards for important human rights cases.

Ensure that where legal aid funds a community action, the legal aid contribution mirrors the proportion of the affected population who are actually eligible for legal aid.

Thankfully, some of the loopier proposals have been dropped. These included:

(a) balance disadvantages and benefits in assessing public interest; (b) invite members of the public and/or public sector body representatives on to the funding committee; (c) appoint the SCU director as the Chair of the new funding committee; (d) restrict legal aid for individual low value damages claims; (e) require additional reconsideration of merits in judicial review; and (f) withdraw solicitors’ delegated powers to self-grant judicial review funding in urgent cases.

But what is left is not going to make for happy reading. Family solicitors are already quaking at the idea that there will be a two week period where the opponent gets to make representations about whether the party applying is actually eligible for legal aid (although not domestic violence or child protection/abduction cases). Cue bitter battles over financial disclosure before funding is even granted. But this is just a pilot, with the aim of a roll out to all areas. It will not apply where the client is at imminent risk of losing their home.

On funding public interest cases, the test will now be:

(i) the case has the potential to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question);
and
(ii) the case is considered on its particular facts to be an appropriate case to realise those benefits.

On public interest and special cases:

We intend to proceed to establish a ‘special controls’ regime for individual cases or types of cases which differ from the mainstream of civil legal aid cases. These cases are: (a) Multi-Party Actions; (b) appeals to the Supreme Court; (c) cases with only ‘borderline’ prospects of success which rely on significant wider public interest or significant human rights issues in order to receive funding; and (d) cases where the costs might exceed £250,000 if they proceeded to a contested trial or final hearing (or for Court of Appeal cases, to the conclusion of that appeal stage).

There will be a new Special Controls Review Panel, with one or more members from consumer groups “The panel will not make the final decision about whether funding should or should not be granted. The panel will not have the power to make the final determination of any issues, other than the legal assessment of prospects of success.” – the final arbiter being the Director of the Special Cases Unit. What this appears to mean is that Which? will be assessing the prospects of success of that Supreme Court appeal you want to bring.

Multi Party Claims where for damages only will have to be above a threshold of £5,000 damages per client, rather than the current approach of aggregating the individual claims into a lump amount.

On judicial review, the presumption of funding where permission had been granted is to be removed, apparently because the LSC was upset about not being able to assess the merits of the case for themselves, where a High Court judge had already done it. The same test will now apply pre and post permission, although the LSC will ‘give weight’ to the grant of permission in carrying out the assessment.

The Funding Code will be ‘clarified’ so that funding for judicial review will only be granted where the client is seeking a material benefit for themselves or their family. Funding will not necessarily be withdrawn ‘in a case where the client secures a satisfactory outcome, but the general issue remains unresolved’, though.

The proposal to end use of delegated powers to fund urgent judicial review claims has been dropped, partly because the LSC eventually dug up some figures showing the success rate was the same for delegated powers and non-delegated powers cases, the clear implication being that the powers weren’t being abused.

All this is intended to on the statute books by April 2010…