Funding and CFAs (OCR A-Level Law): Revision Notes
Funding and CFAs
Introduction to access to justice
Access to justice is a fundamental principle in the English legal system. One of the central beliefs of the welfare state is that there must be equality before the law. This means that guilt or liability in court is established based on the facts and relevant law, not on a person's wealth or status. An inability to pay for legal services should never prevent citizens from bringing an action or defending themselves in court.
However, litigation is expensive. Many people cannot afford the high costs of legal representation. Even when individuals can afford to go to court, they may not be able to hire the best lawyers, such as Queen's Counsel. To put this into perspective, in 2021, the average solicitor outside London charged approximately £200 per hour for advice or case preparation.
This creates a significant barrier to justice. The high cost of legal services means that access to justice often depends on a person's financial resources rather than the merits of their case. Without funding mechanisms, many citizens would be unable to pursue legitimate claims or defend themselves in court.
To address this problem, various funding mechanisms have been developed, including government funding (legal aid), private funding options, and alternative advice services.
Government funding for civil and criminal cases
The Legal Aid Agency
The Legal Aid Agency was established under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This agency operates the legal aid scheme in England and Wales, providing both civil and criminal legal aid and advice to help people deal with their legal problems.
The Legal Aid Agency plays a crucial role in ensuring access to justice by making legal services available to those who cannot afford private representation. It coordinates multiple services to provide comprehensive legal support across both civil and criminal matters.
The Legal Aid Agency has several key responsibilities:
- Ensuring availability of services: The agency guarantees that legal aid services from solicitors, barristers, and the not-for-profit sector are accessible to the general public
- Funding advice services: It finances the Civil Legal Advice Service to provide accessible legal guidance
- Publishing transparency information: The agency publishes evidence about decisions made regarding whether to fund a particular case
- Operating defender services: It runs the Public Defender Service for criminal cases
Civil Legal Advice Service
The Civil Legal Advice Service provides free and confidential advice on civil law matters. This service covers areas such as debt problems, housing issues, and domestic abuse situations. The service is merit tested, meaning applicants must demonstrate their case meets certain criteria to qualify for assistance. Applications and eligibility checks can be completed through the government website.
Public Defender Service
The Public Defender Service operates within the criminal defence market and provides several important services:
- Full representation: Defendants receive free, complete representation from the police station through to the courts, including appeals
- Arrest advice: Free advice and assistance are available when a person is under arrest at any time
- Advocacy services: The service employs approximately 25 advocates, including seven Queen's Counsel (QCs)
Like the Civil Legal Advice Service, the Public Defender Service is merit tested. However, eligibility for free criminal legal aid is assessed by the defendant's solicitor or barrister rather than through a website application.
Private funding
Private funding requires citizens to pay for legal services themselves or contribute towards the costs. There are two main approaches to private funding.
Own resources
Using personal resources to pay legal fees involves paying solicitors and barristers directly from savings, income, or assets. Some people raise funds by taking out loans or remortgaging their homes to cover legal costs.
This approach can place individuals in serious financial difficulty or prevent many people from pursuing legitimate cases altogether. The high hourly rates charged by solicitors (averaging £200 per hour) mean that even straightforward cases can quickly become unaffordable for ordinary citizens.
Conditional fee agreements (CFAs)
Conditional fee agreements (CFAs), commonly known as "no win, no fee" arrangements, were introduced as an alternative method to privately fund civil cases. These agreements fundamentally changed how many people could access justice.
How CFAs work:
Under a CFA, an agreement is made between the client and their solicitor that legal costs are only paid if the case is won. If the case is lost, the client pays nothing to their own solicitor. When a case is won, the solicitor's fees are paid from the compensation received, along with an additional success fee.
Important change in 2013:
Before 2013, the success fee could be recovered from the losing party, meaning the winning client would receive their full compensation. However, this rule changed in 2013. Now, the success fee is deducted from the client's compensation rather than being paid by the losing party. This means that clients who win their cases receive less compensation than they would have done under the previous system.
Success fee limits:
To protect clients from excessive charges, there is typically a cap on the success fee. This is often set at 25% of the compensation awarded.
Worked Example: Success Fee Calculations
Scenario 1: Fee within the cap
- Compensation awarded: £40,000
- Success fee: £2,000
- Percentage: £2,000 ÷ £40,000 = 5%
- Result: Client pays £2,000 (below the 25% cap)
- Client receives: £38,000
Scenario 2: Fee exceeding the cap
- Compensation awarded: £4,000
- Proposed success fee: £2,000
- Percentage: £2,000 ÷ £4,000 = 50%
- Result: Fee is capped at 25% = £1,000
- Client receives: £3,000
Other advice agencies
Sometimes free or subsidized legal advice is available through organizations that individuals may already be members of, or through dedicated advice charities and services. These alternative sources can provide valuable assistance without the high costs associated with traditional legal representation.
Citizens Advice Bureaux (CAB)
Citizens Advice Bureaux are town centre-based legal advice agencies that provide general legal advice through multiple channels: face-to-face consultations, telephone advice, and online resources. There are over 3,500 CAB locations throughout the country, making this one of the most accessible sources of free legal advice. The service covers a wide range of legal issues affecting everyday life.
Law Centres Network
The Law Centres Network provides free access to legal advice from qualified solicitors for people who cannot afford to hire a lawyer privately. Unlike Citizens Advice, which often provides general guidance, Law Centres offer representation from professional solicitors. There are 45 Law Centre locations across England, though this is considerably fewer than the number of Citizens Advice Bureaux.
Pro Bono lawyers
Pro Bono (from the Latin "pro bono publico" meaning "for the public good") refers to lawyers who offer their professional services free of charge. These lawyers volunteer their time and expertise to provide free legal advice and representation to those who cannot afford it. The National Pro Bono Centre coordinates much of this work, connecting qualified lawyers with individuals in need of legal assistance.
Free Representation Unit (FRU)
The Free Representation Unit serves a dual purpose. It provides free legal representation for members of the public who cannot afford lawyers, while simultaneously giving junior lawyers valuable advocacy experience.
This arrangement benefits both parties: clients receive competent representation, and trainee lawyers develop their courtroom skills under supervision. This creates a mutually beneficial system that expands access to justice while training the next generation of legal professionals.
Trades unions
Trades unions provide specific, targeted legal advice to their members on issues relevant to their profession or industry. This advice typically focuses on employment-related matters, such as unfair dismissal, discrimination, workplace disputes, and contractual issues.
Examples include:
- National Union of Teachers
- British Medical Council (for doctors)
- National Union of Journalists
Union membership usually requires a subscription fee, but legal advice is then provided free as part of the membership benefits.
Insurance companies
Some insurance policies include legal advice and assistance as part of their coverage. This can be taken out either "before the event" (in anticipation of potential legal issues) or "after the event" to insure against losing a case and having to pay the other side's costs as well as damages.
Motoring organizations like the RAC and AA, as well as car and home insurance companies, often provide legal advice services for an additional premium.
Charities
Various charities provide specialized legal advice on issues relevant to their particular focus. These organizations offer targeted assistance to vulnerable groups or on specific legal issues.
Examples include:
- MIND: Provides advice on mental health-related legal issues
- Shelter: Offers guidance on homelessness and housing problems
- Sense: Assists deaf and blind persons with legal matters
These charities combine legal expertise with specialist knowledge of their field, making them particularly effective for people facing issues within their area of focus.
Remember!
Key Points to Remember:
- Equality before the law is a fundamental principle: everyone should have access to justice regardless of wealth or status
- The Legal Aid Agency administers both civil and criminal legal aid through services like the Civil Legal Advice Service and Public Defender Service
- Conditional Fee Agreements (CFAs) operate on a "no win, no fee" basis, but since 2013, the success fee is taken from the client's compensation rather than the losing party
- Private funding through own resources can cause financial hardship due to high legal costs (averaging £200 per hour)
- Alternative advice agencies provide free or low-cost legal assistance, including Citizens Advice Bureaux, Law Centres, Pro Bono lawyers, trades unions, insurance policies, and specialist charities
Key Terms:
- Legal Aid Agency: The government body that runs legal aid schemes in England and Wales
- Conditional Fee Agreements (CFAs): "No win, no fee" arrangements where solicitors are only paid if the case is won
- Success fee: Additional payment to solicitors under CFAs, now capped and taken from the client's compensation
- Pro Bono: Legal work done for free ("for the public good")
- Merit tested: Cases must meet certain criteria to qualify for legal aid funding