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ACCESS TO JUSTICE
ACCESS TO JUSTICE
Fishy business with civil legal aid BY STEVEN ZINDEL
At her swearing-in in March, the Chief Justice indicated that: “there are few lawyers practising civil legal aid and fewer still in areas of need and the reasons for that problem are complex”. In “Some criminal justice outcomes in 2018” in LawTalk 928, May 2019 at page 75 there was indicated to be only 2,326 open civil cases where there was a legally aided party (perhaps fewer than that if there were multiple legally aided parties). This is out of about 17,000 court cases disposed of annually, with many other civil matters in other jurisdictions. And these by 462 lead civil providers nationally at 13 June 2018 (only 35 of them acting on five or more cases in that year from 1 July 2017) – see “The parlous state of civil access to justice in New Zealand”, LawTalk 920, August 2018, page 54. The absence of legal aid representation would lead to inefficient and poor quality self-representation, in many cases, and is a concern for everyone in the justice system. Kate Davenport QC, President of the New Zealand Bar Association, was quoted at page 67 of the May 2019 LawTalk issue, as offering a chocolate fish, or even a packet, to those who go back on the list as civil legal aid providers and, in addition, calling for more senior lawyers to “take on one or maybe two cases” pro bono The amendeach year (page 65). ment system
Wholesale restructuring required More encouragement than this is needed to do civil legal aid cases. Wholesale restructuring, including some modest legislative amendment, is required, if the government has the will. Hourly rates of $72-$159 are obviously not able to support the office backup that presentation of civil cases demands. The hours which are claimed by lawyers for their work
just adds a tier of unnecessary bureaucracy, where those on opposing computer terminals fight paper tigers as to how much time a case will need.
are further trimmed because the providers’ views of how much time a case needs are second guessed by untrained legal aid clerks. Sometimes, the clerks have lawyer advice but then this is frequently from their in-house lawyers who may not have practised for a while and who have little knowledge of the dynamics of the client, the dispute and the other side. Part of the problem is the estimate or amendment system, where the case is not fixed fee or where it starts out that way but you apply to take the off ramp from the fixed fees motorway. There is no ability to amend the grant if the bill is reasonable if there has not been a prior decision taken on the amount of the grant, frequently in the abstract, before the work is done. If you forget to apply for an amendment before the case is over, also, it is usually too late.
A tier of unnecessary bureaucracy The amendment system just adds a tier of unnecessary bureaucracy, where those on opposing computer terminals fight paper tigers as to how much time a case will need. Even if a final bill has been rendered which is much less than the amendment anyway, the amendment will still be debated and the provider will need to justify his or her time by a breakdown of hours into various arbitrary categories such as “research” or “interlocutory work” or “drafting”. A hearing gets close when you realise there is no fuel in the tank; then you have to submit an urgent amendment if there is such an overrun, box on and hope that it will be granted, sometimes experiencing disappointment after the event. The amendment system seems to be based on the consumer’s right to an estimate but it’s difficult to estimate litigation costs, with so many contingencies, and the arrangement is really with legal aid and the value of the legal work that has been done. A client whose fees are paid in the first instance by the taxpayer is realistically not going to say to a lawyer to hold off on anticipated extra work because they can’t afford to pay for it, even if there may be a repayment at the end.
Civil legal aid Cases on civil legal aid tend to come to the office as urgent, with case management timetable orders to be 77