Duncan Lewis

Romford Office

Crime and Civil cases

house 40 staff

A senior judge says legal aid cuts could create a chasm between the outdated law and modern needs

Date: (20 November 2012)    |    

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Legal aid services were the mainstay of UK’s fair justice system until cuts have started taking its toll with more and more areas of law being starved of legal aid help.

People who cannot afford the services of a lawyer or who are not eligible under the remnant of legal aid would find litigating all by themselves in person which could lead to the creation of a black hole for civil law reform Mr Justice Foskett has suggested.

Foskett J said that the recent Law Commission successes in reforming civil laws were rather few and far between, while reform through case law could only operates if cases needing contemporary review came before the courts in sufficient numbers.

Mr Foskett J was delivering the autumn law alumni lecture at King’s College London and said that there was a decrease in the amount of contested litigation over the last 10-12 years due to Woolf reforms and the reduction in eligibility for legal aid also made a significant impact.

And with further reduction in legal aid to take its full affect in April next year and the way litigations would be funded henceforth the legal field would see greater number of civil cases coming under scrutiny to decide whether it should be fought or not.

Foskett J said that he did not want to speak about the policy as such which was driving it but there was not much left to the imagination to appreciate that civil cases which were on the borderline of arguability would struggle to qualify for funding under new arrangements.

But, he added it was entirely right that the courts should not be inundated with cases of doubtful merit.

However, he doubted about those cases which were easier to identify than to define, where success could depend on a subtle change in well-established case law.
Such cases needed to be promoted by some changes and development of the civil law. But such case could fall short of funding he said.
Foskett J asked how easy it would be for judges to consider a potential move forward in the law where the argument for or against it was put forward by a self-represented litigant.
He said that the cautious manner the task was undertaken now, usually only after the “benefit of good and informed argument on both sides”, suggested that “even greater caution” would be exercised in the future.
Foskett J said there would “surely come a time when, in a particular area of civil law, everyone would understand that the law has become outdated but no-one, least of all the judges, could do anything about it.
He said it may be too early but not very far to suggest that reform of the civil law has already been confined to a black hole.
However, Mr Justice Foskett said that it has to be confronted, or complacency could take over with last minute rush to bring in enactments to escape the proverbial black hole.
He concluded that judges may be criticised for their decisions forever but they cannot be criticised for applying out of touch laws which have not been permitted to be brought in with the modern needs.