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Is a court-based legal aid scheme in the offing?
A recent judgment has raised the possibility that, in particular private family law cases, the court may direct that the ‘cost of certain activities’, including ‘appropriate representation’, be provided at the expense of HM Courts and Tribunals Service (HMCTS) (Q v Q, Re B (A Child), Re C (A Child) [2014] EWFC 31, 6 August 2014 paras 90 and 79 respectively). Sir James Munby, President of the Family Division, who made the ruling, was concerned that, otherwise, the court would be in breach of its duty to ensure compliance with European Convention on Human Rights article 6 (right to a fair trial) and article 8 (right to a family life).
Sir James observed that potentially the lack of public funding in cases for people who cannot afford to pay for representation created major problems. ‘First, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay’ (para 43). Therefore, if there was ‘no other properly available public purse’ the cost would have met by the court via HMCTS (para 57); however, the President emphasised that such a direction would be ‘an order of last resort’ (para 90). (See also page 54 of this issue.)
Simon Pugh, co-editor of the LAG Legal Aid Handbook 2013/14, said that the case was significant ‘as it is the first time that a court has contemplated representation of a litigant directly’. He believes that while the judgment is limited to private law family cases in which serious allegations have been made against the unrepresented party, ‘there may well be similar arguments to be made in other types of cases’.