There have been important changes to both civil and criminal costs, which will impact on access to justice in England & Wales. (There is a different legal system in Scotland.)
The erosion of access to public funding in criminal cases has been widely reported, but recent changes in the law will affect those who can afford to mount their own defence in the Criminal Courts. Section 16(6) of the Prosecution of Offenders Act 1985 allowed the court to award acquitted, privately-paying defendants an amount from public funds to compensate them for their properly incurred legal costs. In 2010, the Law Society successfully challenged the previous Government’s attempt to cap, at legal aid rates, the costs recoverable by successful defendants.
This Government has, however, recently enacted, without further consultation on costs in criminal cases, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Costs in Criminal Cases (General) (Amendment) Regulations 2012. The principle of compensation set out in the 1985 act has been amended. The new legislation provides that defendants in the magistrates’ court will be entitled to recover their costs under a Defendant’s Costs Order if they are acquitted, but the amount will be limited to legal aid rates – which are very low indeed.
Defendants appearing in the Crown Court, in respect of proceedings commenced on or after the 1 October 2012 (except in an appeals from a magistrates’ court), will not be entitled to recover their legal costs expended in successfully defending those proceedings if they chose to be represented privately. The rationale for this is that all defendants in the Crown Court will be entitled to legal aid whatever their means, but subject to a contribution. Defendants who obtain legal aid will be entitled on acquittal to have the entirety of their contributions repaid to them. This is in contrast to those who chose to pay privately for their defence, who will not be entitled to recover their costs.
Whilst it is undesirable in my view for an acquitted defendant to be out of pocket, the main issue for cyclists and other vulnerable road users is that bad driving is all too often not dealt with by the courts. The current legal framework unfortunately fails to ensure the proper administration of road crime, particularly for vulnerable road users such as cyclists and pedestrians. (This is why Cycling UK has launched the Road Justice Campaign, supported by Slater & Gordon Lawyers – see roadjustice.org.uk).
In civil proceedings, there have been changes as to how personal injury cases are funded. Cases were funded under Conditional Fee Agreements, known as ‘No win no fee agreements’. In the event of a win, the successful claimant’s legal costs were recovered from the defendant’s insurance company. In addition, the claimant’s solicitor would also recover a success fee (in road traffic collision cases, normally 12.5% of the fees), which would also have been paid by the defendant’s insurers.
From 1 April 2013, success fees are no longer recoverable from defendants, and for all cases below £25,000 in value only very limited fixed legal costs are recoverable against a defendant. In most cases, a successful claimant will thus not recover all their legal costs. In practice, most successful claimants will pay up to 25% of their damages to their lawyer.
Notwithstanding the changes to the civil costs landscape, Cycling UK’s legal services scheme is unchanged. Cases are still funded under a no win, no fee arrangement, and successful Cycling UK claimants will recover all their damages without any deductions for legal costs.
This was first published in the February / March 2014 edition of Cycling UK's Cycle magazine.