The Beeching of legal aid
Applying Dr Beeching's approach to legal aid has caused real problems
There’s a new Civil Procedure pre-action protocol out, this one focusing on debt claims. You can read all about in Your Witness 90 available in The Library. It makes grim reading for creditors dealing with individuals or sole traders, and will add impetus to the growing trend of requiring payment in advance from, for example, litigants in person.
Part of the problem with debt cases is of the Ministry of Justice’s (MoJ) own making. The widespread factoring of commercial debts, coupled with the centralised, semi-automated way in which the court deals with many claims ex parte, make many individual debtors feel that they are up against a system they don’t understand and offers them no voice.
The Beeching-like destruction of our legal aid system, painful branch by painful branch cuts, has removed one of the most important paths to early settlement ‐ 30 minutes with a solicitor under a ‘Green Form’. It gave debtors (and sometimes creditors) a clearer understanding of their options. It also frequently resulted in payment, an offer to pay by instalments, or the setting up of some sort of voluntary arrangement. Legitimate defences or counterclaims were identified much earlier, offering creditors a better understanding of the debtor’s position. Despite the new Protocol talking about giving debtors time to seek advice, the fact is that most debtors no longer consult a solicitor ‐ they simply can’t afford it!
Is it cynical to assume that the Protocol has been designed purely to discourage reasonable litigation? It seems likely that will be the effect. The Protocol may have some useful function if it promotes rational discussion and negotiation between the parties. The exchange of financial information could, at least, persuade the creditor that the debt is ‘not worth the candle’ and should be written off in preference to costly litigation. However, the majority of creditors make every effort to reach reasonable agreement despite the beliefs of the Protocol’s authors. If the MoJ really wanted to save itself time and money, it should have spared the expense of the Pre-Action Protocol Subcommittee and diverted more of its meagre resources to creating a court system that works for ordinary people.