Law Aid, all you need to know

In essence

Law Aid is a non-profit trust provided by the State Government more than a decade ago to assist those who cannot afford litigation, but for whom solicitors and barristers are prepared to work on a “no-win no-fee” basis.

In detail

Although the non-profit charitable trust has been operating since 1996 unfortunately, many lawyers do not make applications on behalf of their clients and many solicitors do not know of its existence. The scheme is intended to extend the availability of civil litigation assistance to those people assessed as having worthy cases at law but could not otherwise afford to go to court.

A joint initiative of the Law Institute, Victorian Bar Council and the Department of Justice, the scheme can provide payment of all disbursements apart from Counsel’s fees. Under the scheme, both the solicitor and the barrister agree not to charge until the successful conclusion of the litigation. The client is not required to repay the disbursements unless the action is successful, in which case a fee of 5.5% of the sum which the client receives after payment of costs and disbursements, is levied. The original agreement proposed a 10% fee but this level of fee has not been required to keep the scheme viable.

In particularly big cases, the trustees use their discretion to reduce the percentage levied even further.

The scheme was created under the Legal Aid Act and a memorandum of understanding was entered into by representatives of the Institute and the Bar Council.

The preferred matter types were stated to be:

  • Substantial personal injuries claims
  • Claims against institutions involving oppressive behaviour
  • Loss or destruction of property claims • Professional negligence claims
  • Testators’ family maintenance claims

Guiding principles

The 3 guiding principles of Law Aid are:

  • The scheme is the responsibility of the private legal profession through the LIV and the Bar
  • The Government’s involvement is to provide the money and to monitor the scheme’s accountability
  • The scheme needs to be financially viable and self sustaining

Legal status

The scheme gains its authority from PART VIA of the Legal Aid Act 1978. It provides the power for the fund to be operated in accordance with a Trust Deed that was entered into at the commencement of the scheme.

Figures

It was initially hoped that approximately 380 applications would be made each year. The Government contributed $1.68 million as initial funding for the scheme and this amount still remains as the scheme has proved viable over the 18 years of its existence. The number of applications has risen over the years but never reached the anticipated high level. The closest to that number of applications has been 314 in 2010.

In practice

An application form is attached to the end of this paper and requires an accompanying letter from the solicitor. Applications can only be made by solicitors. There is a requirement in the application to detail the financial assets of the client, but all trustees are well aware of the enormous cost of litigation these days and in particular expert reports.

A manager and two part-time assistants, who are legally qualified, receive applications for funding and reports on the progress of cases which are presented to the Board of Trustees each month. The Board consists of 4 representatives of both the Bar and the Law Institute.

The current composition of the Board is:
Sally Sheppard (Chair)
James Mighell  QC
Ròisìn Annesley QC
Chris Blanden QC
Michelle Britbart QC
Michael Jorgensen
Danny Frigerio
Chinka (HEP) Steel

All members are experienced in the Law with different skills and views. They receive no remuneration and voluntarily give up a day and sometimes more, each month, to read through all the material required to make decisions . They then meet for two to three hours each month to discuss and make decisions on the applications.

Grants are often made for specific investigations, either factual or medical. After proceedings are commenced, further regular reports are required from the solicitor regarding the progress of the case and decisions made about continued funding. The client and the solicitor continue to be completely in control of the action itself and the Trustees do not seek to interfere with the running of any matter. They do, however, have the discretion to either withhold or cease funding. It is, however, not done lightly and applicants and solicitors have the comfort of knowing that senior litigators have considered, and in some cases strongly debated, the issues involved in each case. These cases like all litigation vary greatly in the facts and law.

It is important to note that funding is not usually provided for the whole case right from the start. It is usually provide on a graduated basis. It will not be granted retrospectively, save for very exceptional circumstances.

At the conclusion of the application, where either the investigation or case showed little prospect of success or failed, there is no obligation upon the solicitor or client to pay for the disbursements outlaid. Where there is a successful outcome, namely money is received, a copy of bills and a reconciliation statement are required and the fund fee paid. A reconciliation form, which you can see is quite simple, is attached to this paper.

It is vital that settlements or awards not be fully distributed until the Law Aid fund fee is known, approved and can be paid. Where there is a litigation guardian involved, it is also essential to include in the documents supporting the approval of the compromise, details of the involvement of Law Aid.

Conclusion

A short article which appeared in the LIJ in September 2012 is also attached to show some examples of previously funded cases. Although there is plenty of work for the scheme at the moment, we are keen to see more applications and a wider spread of firms using a resource specially created to assist plaintiff lawyers in this State bring justice to those who can’t afford the heavy burden of litigation.