By Dr Leanne Smith, Senior Lecturer in Law (School of Law and Politics, Cardiff University) and Dr Emma Hitchings, Senior Lecturer in Law (University of Bristol Law School).*
In mid June 2017, the report of our Bar Council commissioned research on fee-charging McKenzie Friends in private family law cases was published (the full report can be accessed here and an executive summary here).
One of the report’s key messages is that we found little evidence of McKenzie Friends seeking to exercise rights of audience on a regular basis and plenty of evidence that the bulk of the work done by McKenzie Friends is done outside of court. The work McKenzie Friends do in court, we said, is ‘the tip of the iceberg’. This was the finding that the Pink Tape blog outlining Lucy Reed’s perspective on the research focused on, indicating that it was not at all surprising. We hope we can be forgiven here for indulging in a few words in defence of the utility of the research.
We readily accept that many in the legal professions have been aware for some time that paid McKenzie Friends operate predominantly outside court, but research has an important role to play in interrogating anecdotal evidence and providing more systematically derived evidence in order to validate or debunk it. This is no less true because perceived experience is validated by a set of results. In this instance, our hope is that the findings of the research will function as a turning point for discussion on the subject of fee-charging McKenzie Friends in a way that the observations of some professionals who encounter them has not. In addition there are, of course, some more granular observations that we consider important buried in our report, though we will resist spoilers for those who haven’t yet finished reading it…
Anyone familiar with legal aid reform will know that the Legal Aid and Sentencing of Offenders Act 2012 (LASPO) has dramatically altered the meaning and nature of legal aid. It has meant, amongst other things, a significant reduction in funding, largely achieved by taking a large number of areas of civil law out of scope, including private family law cases, and almost all cases involving social welfare, housing, medical negligence, immigration, debt, and employment.
The most strenuous critics of LASPO have pointed out that the recent funding cuts restrict people’s access to justice. In answering to these problems, LASPO incorporated a set of exceptions. Those who could provide evidence that they had been victims of domestic violence, for example, were to be given access to legal aid to pursue family law cases. And an Exceptional Case Funding caveat was incorporated in the Act for those who could successfully make a case that their human rights would be breached without publicly-funded legal assistance. Both have been woefully inadequate. (more…)
Research led by Prof Morag McDermont of University of Bristol Law School has explored the ways in which advice organisations such as Citizens Advice (CA) have become key actors in legal arenas, particularly for citizens who face the most disadvantage in upholding their rights. Findings from a four year study in partnership with Strathclyde University, highlight the importance of free-to-access advice in enabling people to tackle problems and engage with the legal and regulatory frameworks that govern their lives.
The advice sector, however, is under threat, as a new book Advising in Austerity: Reflections on challenging times for advice agencies (edited by Samuel Kirwan and published by Policy Press ) demonstrates. The book, co-written by the research team and advisers in the field, highlights both the possibilities and the challenges for an advice sector that largely relies on volunteers to provide a vital interface between citizens and the everyday problems of debt, health, employment and much more. Despite the skills and enthusiasm of the workforce, many services are caught between rising demand and large-scale funding cuts, as traditional sources of revenue from local authorities and legal aid are dramatically reduced. Across the network, reductions in core funding are forcing agencies to reduce or reconfigure services. In particular, the face-to-face, generalist advice model that provides a holistic assessment of client’s problems is under pressure as services are reduced in favour of telephone or online support.
In the wake of legal aid cuts, individuals in the midst of a family law dispute who cannot pay for legal representation are faced with a stark choice: settling the dispute outside of court or representing themselves as a litigant in person. However, a new market has emerged to plug this post legal aid funding gap: the fee-charging McKenzie Friend. A non-lawyer assistant who charges a fee for services provided to litigants in person.
Although much of my research focuses on legal aspects of undocumented migration, I’d never visited a detention centre for irregular migrants. So when the opportunity arose in May this year to see inside the Otay Mesa detention facility near San Diego (where a Russian citizen had died just days before), I couldn’t pass it by.
The first thing that strikes the observer is how far the facility is located from downtown San Diego. Indeed, it’s very close to the Mexican border. Having finally arrived after more than an hour’s drive, and after going through a double electrified fence and registration, we are conducted into a room where we are given a presentation by CCA personnel. CCA — the Correction Corporation of America — is a private company making huge profits on running such centres ($227 million in 2015). With some notable exceptions, scholars have neglected the business aspects of the migration industry, perhaps due to the opaque nature of some of the arrangements between governments and companies working in the sector. Yet these aspects raise innumerable questions as to whether one can reconcile the profit-seeking interests of shareholders in such companies with human rights, as well as to what extent legislation might be influenced by powerful lobbies interested in perpetuating the detention cycle. (more…)
By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).*
The Family Court system costs a lot to run. Until 2008 much of the cost of running the courts came from taxes, but increasingly litigants are expected to foot the bill. So the court system cannot be thought of as simply part of securing a Just Society, like the Police, the Armed Services and Parliament, all of which are paid for from taxes. Rather courts exist as a service for those who want to litigate.
Court fees have been raised repeatedly, and for some types of proceedings, including divorce, actually exceed what it costs to provide the service. The court fee for divorce is £550. Applicants for divorce subsidize other cases where the full economic cost cannot be charged. The courts have a monopoly over divorce, which is secured by the criminal law! Remarrying whilst still married is a crime – bigamy.
The changes to personal injury law announced by the Chancellor of the Exchequer in the Autumn Spending Review have already raised considerable controversy. Claims for damages for whiplash injuries are to be abolished (along it seem with claims for all low value minor soft tissue injuries incurred in road accidents). In addition, the small claims limit for personal injury cases is to be increased from the current £1,000 to £5,000.
As a result of the latter change, a much greater number of personal injury cases will be determined in a procedure under which a winning claimant will be unable to recover any costs. The purpose of this comment is not to consider the immediate implications of these changes, but rather to ask what they tell us about how the personal injury system is likely to develop in the future. (more…)