Causes of Action: First Findings of the LSRC Periodic Survey

AuthorPascoe Pleasance,Nigel J. Balmer,Hazel Genn,Aoife O'Grady,Alexy Buck
DOIhttp://doi.org/10.1111/1467-6478.00243
Published date01 March 2003
Date01 March 2003
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 1, MARCH 2003
ISSN: 0263-323X, pp. 11–30
Causes of Action: First Findings of the LSRC Periodic
Survey
Pascoe Pleasence,* Hazel Genn,** Nigel J. Balmer,*
Alexy Buck,* and Aoife O'Grady*
In this paper we report some of the first findings of the LSRC periodic
survey of justiciable problems. We confirm the prevalence of
justiciable problems amongst the general population. We identify
important differences in the experiences of discrete socio-demographic
populations, not only in terms of the number of problems faced, but
also in terms of the perception of problems and reactions to them. We
show that cost is not the principal barrier to taking action or obtaining
advice across most problem categories. Other concerns, such as fear
or uncertainty as to what can be done are generally more prevalent.
We illustrate the range of strategies employed by those who take
action, and confirm the rarity of court action. Finally we show that the
basic form of Felstiner, Abel, and Sarat’s aetiology of lawsuits is
recognizable within our findings, although we explain that the manner
and form of progression through the various stages is complex and
irregular.
INTRODUCTION
Until the 1990s the legal aid system in England and Wales focused almost
exclusively on solicitors, barristers, and the areas of law traditionally
covered by those professions. The legal aid budget and geographical pattern
of delivery were essentially demand-led, and the only significant control on
the budget was exercised through modification of financial eligibility
11
ßBlackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
*Legal Services Research Centre (LSRC), 85 Gray’s Inn Road, London
WC1A 8TX, England
** Faculty of Laws, University College London, Bentham House, Endsleigh
Gardens, London WC1H 0EG, England
The authors would like to acknowledge help received by the National Centre for Social
Research in conducting the fieldwork for the LSRC survey, and by Tamara Goriely in
providing source materials in relation to the history of empirical studies of legal need.
criteria. During the 1990s, however, as eligibility decreased to below half of
the population, and further erosion of eligibility levels could no longer
provide a defensible strategy for the future development of legal aid,
1
a new
emphasis on effective targeting on the basis of need arose. Legal aid strategy
in England and Wales had emphatically arrived in Glennerster et al.’s ‘third
phase’ of development – namely a retreat from universality and an emphasis
on targeting services to those most in need.
2
Through the Access to Justice Act 1999, the Legal Services Commission
replaced the Legal Aid Board, with a broader responsibility than its
predecessor, extending to education, the provision of direct services, and the
strategic development of legal services to best meet the needs of the
population. The focus of legal aid funding, as set out in the Legal Services
Commission’s Funding Code, has now shifted towards matters of basic
liberty and social welfare.
3
The historically substantial area of gross legal aid
expenditure of personal injury has been largely removed from the scope of
legal aid,
4
along with matters such as those pertaining to the conduct of a
business. The traditional dominance of legal aid by the legal profession has
consequently been lessened through the emergence of the not-for-profit
advice sector as an important component of the legal aid delivery system.
5
This enhanced role for the not-for-profit advice sector has been intended to
bring within the legal aid system greater specialism in social and welfare
12
1 Changes to the main civil legal aid means test, implemented in December 2001, were
designed to be eligibility- and cost-neutral. The aim of the changes was to simplify
the means test and better target those individuals least able to afford legal services.
See, further, A. Buck and G. Stark, Means Assessment: Options for Change (2001).
2 H. Glennerster, J. Hills, T. Travers, and R. Hendry, Paying for Health, Education and
Housing (2000). Glennerster et al. describe the first phase of government social
spending as being associated with the allocation of limited resources, the second by
the provision of extensive services through the public sector, and the third by a retreat
from universality and an emphasis on targeting services to those most in need.
3 Civil proceedings in which a person’s life or liberty is at stake, along with certain
proceedings under the Children’s Act 1989, have been designated as ‘top priorities’.
These are then followed by a series of case types that have been designated as ‘high
priorities’. These include domestic violence, housing, social welfare, and abuse of
power by a public body cases. For discussion of the impact of the Funding Code, see,
for example, P. Pleasence, A. Buck, and J. Christie, Testing the Code: Final Report
(1999); T. Goriely, Breaking the Code (2001).
4 The provision of personal injury services remains an important component of the
broad Community Legal Service, but access to them is now intended to be secured
through conditional fee arrangements. For an account of the introduction of
conditional fees, see S. Yarrow, The Price of Success: Lawyers, Clients and
Conditional Fees (1997); S. Yarrow, Just Rewards? The Outcome of Conditional Fee
Cases, (2000); S. Yarrow and P. Abrams, Nothing to Lose? Clients’ Experiences of
Conditional Fees (2000). See, also, R. Moorhead ‘Conditional Fee Agreements, Legal
Aid and Access to Justice’ (2000) 33 University of British Columbia Law Rev. 471.
5 Payments to not-for-profit agencies now comprise around 15 per cent of total legal
help expenditure.
ßBlackwell Publishing Ltd 2003

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