DISTINCTION LEVEL - Workshop & tutor notes. Notes are in detail and include relevant topics. These notes are clear, concise, and easy to understand.
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Please note that information regarding divorce maybe different due to the yea...
LEGAL AID ISSUES
Legal aid not available for family law cases unless they are within THE
SCOPE of the legal aid scheme under LASPO 2012
Family cases e.g., private children cases, financial applications and
divorce are OUTSIDE THE SCOPE of the legal aid scheme UNLESS the
client can demonstrate that they have been a victim of OR is at risk of
domestic violence OR – in children cases – the cases is for the purpose of
protecting a child who would otherwise be at risk of abuse!
- Evidence needs to be shown of domestic abuse – they are listed in
Sch 1 to Civil Legal Aid (Procedure) Regulations 2012.
- For example – arrest for domestic violence offence, protective injunction
made in the past or a report from a health professional that an
examination showed injuries/condition consistent with those of a victim of
domestic violence.
- DESPITE clients being able to show that they are within the scope of the
legal aid scheme, clients must now go on to ESTABLISH their
entitlement to legal aid BASED ON THE MERITS of their individual
case and their financial MEANS.
- The solicitor must advise their client PROMPTLY concerning legal aid (even
if their firm does not offer legal aid) before the client incurs costs on a
private paying basis – Truex v Kitchin (2007).
Standard fixed fee:
- Depends on the type of case.
- Geographical location of the firm
- Case progression through all four types of funding = four separate fixed
fees.
LEGAL HELP
People who financially eligible and on merit can obtain initial advice
from a solicitor.
- Financially eligible? Client must exist within the financial limits for both
capital and income.
- Client receives welfare benefits? Automatically qualify on income
grounds. 😊
- Capital limit = £8,000.
- Eligible client – do not have to pay contribution but statutory charge may
become relevant.
The case MUST also MERIT legal help.
, - This legal help can only be provided if there is SUFFICIENT BENEFIT to the
client – having regard to the personal circumstances of the client and the
circumstances of the case to justify work being carried out.
Legal help is NOT provided:
- If the claim is hopeless, vexatious or would be an abuse of the
process OR if the client is seeking advice on non – legal matters.
- The responsibility is on the solicitor to ensure that both the client is
financially eligible AND that legal help is justified on merit.
FAMILY HELP (LOWER)
This level of help is NOT available for divorce, child maintenance cases
or where the client requires only general advice about the dispute and method of
dispute resolution.
- This level of help covers work done by the solicitor up to the ISSUE
OF PROCEEDINGS (not including it).
- The solicitor can advise the client, draft documentation, write
correspondence, negotiate and/or support the client through mediation.
- The solicitor is involved in substantive negotiations with a 3rd
party and the case is significant family dispute – meaning that if
unresolved, would result in family proceedings. s
- This help occurs where the help required is more than taking
instructions and providing follow – up written telephone advice.
When is this help provided?
- ONLY where the client comes within the capital and income limits AND
where the benefits to be gained from the help justify the likely costs.
FAMILY HELP (HIGHER)
This form of help is only justified where it is necessary to LITIGATE or
proceedings are already underway AND ALL REASONABLE
ALTERNATIVES TO LITIGATION have been EXHAUSTED.
When is this help provided?
- NOT for domestic abuse cases but IS AVAILABLE for children cases
(issuing of proceedings onwards is covered) and financial cases (latter –
issuing proceedings up to and including the Financial Dispute Resolution
hearing).
- Client’s capital and income must be within the current financial
limits.
- Client may have to pay a contribution depending on their resources –
therefore, the solicitor should explain to the client the EFFECT OF
THE STATUTORY CHARGE.
- It is only provided where the benefits to be gained JUSTIFY the
likely costs such that as REASONABLE PRIVATE PAYING CLIENT
WOULD BE PREPARED TO PROCEED IN ALL CIRCUMSTANCES.
,Can this help be refused?
- Yes – it may be refused if alternative funding is available to the
client.
- This might occur where the client could raise the money to pay their legal
fees by selling assets or taking out a loan.
LEGAL REPRESENTATION
This covers preparation for and representation at the final hearing.
What is the eligibility for legal representation?
- The application process and the criteria by which it is granted is the SAME
AS FOR FAMILY HELP (HIGHER) 😊
HOWEVER – There must be a demonstrable NEED for legal representation
in view of the CIRCUMSTANCES OF THE CASE.
HELP WITH FAMILY MEDIATION
This funding was introduced by LASPO 2012 – covers legal advice given to
support a client participating in family mediation.
WHAT IS THE EFFECT OF LEGAL AID?
IMPORTANT – The solicitor now has a DUTY to notify the court and the other
parties to the case that their client is publicly funded.
How do they do this?
- Solicitor must file the original legal aid certificate at court and
MUST inform all other parties by serving them a NOTICE OF ISSUE OF
CERTIFICATE.
Solicitor and client?
Solicitor owes normal duties to the client in receipt of legal aid.
- Solicitor owes a duty to the LAA.
- Client acts unreasonably? Refuses reasonable offer of settlement OR
has given inaccurate, misleading, or incomplete information – the solicitor
MUST report this to the LAA.
- The solicitor’s duty to the LAA OVERRIDES their duty of
confidentiality to the client!
STATUTORY CHARGE
If client benefits financially from the case, property received by the
client can be taken by the LAA and applied in payment of the solicitor’s
fees = statutory charge.
- This principle is to put the LAA funded client in the same/close as possible
position as the private paying client 😊.
, - The solicitor must explain this charge to the client and ensure that the
client understands it and should be reminded of it throughout the
proceedings but also of the costs accumulated so far in each stage!
How the charge operates?
- LAA pays the legally funded client’s legal fees.
- Firstly – LAA claims any money paid in favour of the legally funded client.
- Shortfall? The LAA retains any contribution paid by the legally funded
client in regard to the terms of the offer of legal aid.
- Still a deficit? Statutory charge applies under LASPO 2012, s25.
- The effect? Any property (including) which is recovered or preserved in
the proceedings may be applied to make up the shortfall! Property is
recovered – funded client GAINS (obtains property) BUT if the property
is preserved – funded client RETAINS property and successfully defends a
claim!
- Can apply even where there the ownership of the property is NOT
in dispute but proceedings were brought to determine what
should happen to the property e.g., to be sold, transferred, or
retained?
What does the solicitor need to do?
- Notify the LAA of property recovered or preserved by the client.
- Client receives a LUMP SUM? Solicitor can apply to the LAA for
authority to release some funds to the client provided sufficient sums are
retained to cover the firm’s costs and the statutory charge has been
satisfied – then the balance is sent to the funded party!
EXEMPTIONS FROM STATUTORY CHARGE
- Cases using Legal Help – exempt from the operation of the charge.
- Cases using Family Help (LOWER) are exempt PROVIDED only the
standard fixed fee is claimed!
- If not – then the statutory charge applies to ALL costs including
those incurred under Legal Help and Family Help (lower) –
meaning the entire cause or matter and NOT just the financial
proceedings.
Property exempt from the charge?
- Periodical payments
- Payments on or after the making of an occupation order under Pt IV of the
FLA 1996
- Lump sums or property adjustment orders made after divorce in
substitution for spousal maintenance under s31(7A) or (7B) of the
Matrimonial Causes Act 1973 AND
- Pension attachments or pension sharing orders (other than the lump sum
pension attachments) under ss23, 24 and 24B of the MCA 1973.
Legally funded client recovers both lump sum and property – the LAA will take its
charge from the money first, then attach the charge to the property ONLY as a
last resort! 😊
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