Lower courts: Barristers not so keen on cases
The distinction between solicitors and barristers is becoming increasingly “blurred” in civil legal aid cases as solicitors do their own advocacy, research for the government’s review of civil legal aid has found.
Researchers also said solicitors found it more difficult to appoint barristers to cases in the lower courts, which “tended to be seen as less interesting and were generally lower profile”.
The study was one of five published on Friday as the Ministry of Justice announced 10% fee increases for housing, debt, immigration and asylum work and possible increases next year for the other areas where legal aid is available.
As we reported yesterday, another of the reports said the Ministry of Justice was at risk of not meeting its statutory duty for civil legal aid to deliver access to justice.
The advocacy research report said that a combination of an advocate shortage and the financial pressures on civil legal aid firms meant “the proportion of solicitors undertaking advocacy themselves had increased in recent years, which they saw as a sign of the longer-term sustainability challenges within the sector”.
Professional distinctions between solicitors and barristers were becoming “increasingly blurred, with a few barristers suggesting that having more solicitors-advocate “was not necessarily positive”.
Solicitors, meanwhile, complained about the attitude taken by some barristers to cases in the lower courts.
“Participating solicitors reported that in lower courts, cases tended to be seen as less interesting and were generally lower-profile, and they were therefore more likely to find it difficult to appoint a barrister as the case would not be particularly attractive.”
A shortage of barristers was common if the hearing was at short notice; in Wales, South-West England and the Midlands, and/or in lower courts.
IFF Research, commissioned by the Ministry of Justice, based the report on interviews with 40 advocates and instructing solicitors across a range of areas.
Solicitors “often expressed a preference to keep advocacy ‘in-house’ so that they or their firm claimed the advocacy fees, making the case financially viable”. Mental health solicitors were the most likely to conduct advocacy themselves, even in complex cases.
IFF found that “all participants expressed concerns about increased bureaucracy and administrative work involved in civil legal aid advocacy”, regarding civil legal aid pay rates as “too low for the type and volume” of work carried out.
“The fixed-fee system was deemed too complex and did not reflect the work carried out by advocates, causing additional burdens and payment delays.”
Researchers said all the lawyers viewed the current advocacy system as “unsustainable” and risking access to justice.
“The reasons for this view were the diminishing capacity of the civil legal aid advocacy sector due to an ‘ageing’ legal aid workforce and few opportunities for advocacy training for solicitors, and low pay and bureaucracy.
“The lack of availability of civil legal aid advocates across geographical areas, as well as across categories of law, led to increased pressure on the remaining advocates.”
Advocates and solicitors “felt LASPO negatively impacted the civil legal aid advocacy sector” because it removed financial support for many case types, and the eligibility criteria were made stricter for the remaining cases. The result was “reduced access to justice” and “more litigants in person”.
Among the suggestions made to improve sustainability were “increasing funding and simplifying pay processes, expanding qualifying case types and eligibility, improving consistency in the court systems and infrastructure, and raising the profile of civil legal aid earlier in careers”.
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