Inequality of arms in a post-legal aid world
By:7 commentsDecember 13, 2017
I nearly deleted the email. Greeted with it in my inbox early last Saturday morning, my still sleepy brain couldn’t initially make sense of it. It seemed to be just another spam email from some stranger, of the type that I receive all the time, and I automatically hovered over the ‘trash’ button.
But then I looked at it again and realised what the sender was asking of me. I gave her the information that she requested and was rewarded with a reply explaining why she wanted it. She was involved in apparently acrimonious divorce proceedings. But the worst part was that she was having to represent herself, whilst her husband had the benefit of being represented by one of the most prestigious law firms in the country.
Welcome to family law in the 21st century.
Now, as I will explain in a moment, there may be (at least one) way for this lady to get out of her unenviable inequality of arms predicament, but before April 2013 the fact that you could not afford to instruct solicitors was no bar to anyone obtaining proper legal advice and representation. Until then, legal aid was available to anyone involved in private law family proceedings, such as disputes over arrangements for children and financial remedy claims ancillary to divorce. OK, it may have been true that the most ‘prestigious’ firms in the country did not usually offer a legal aid service, but there were still very many excellent firms that did, and inequality of arms was rarely much of an issue. Everyone had access to the benefit and protection of a lawyer: there were no second-rate citizens who did not.
All that of course changed when the last government swept away the protection of legal advice and representation for all those who could not afford it. Now, the prospect of having to represent yourself against an opponent with the benefit of lawyers is a daunting reality facing all too many litigants in our family courts.
Of course the unfairness of all this is magnified when the opponent is represented by a particularly high-profile firm, with its access to some of the top lawyers in the country. But ironically that fact may be an indicator of a possible answer to the inequality of arms problem, as Marilyn Stowe and others pointed out to me when I mentioned the issue on Twitter.
The answer to my lady’s predicament, as I subsequently advised her, may be a legal services order (LSO). As I have explained here previously, a legal services order is an order of the court requiring one party to pay a sum of money to the other party, to enable them to obtain legal services for the proceedings. Now, obviously such an order is only a possibility if the other party has the means to pay, but if he has the means to instruct one of the most prestigious law firms in the country, then that is an indicator that he may well have the means to pay a LSO.
There is then the problem of a litigant in person (LiP) having to apply for a LSO. Many LiPs may be so overwhelmed, or at least intimidated, by the prospect of having to make such an application, that they may be put off. However, my understanding (thanks to another Twitter user, whose name I can’t mention, as he keeps his account protected) is that many firms would be prepared to represent the LiP, if there was a high prospect of success, so that their costs were ultimately paid.
Even so, it still doesn’t seem right to me, and probably doesn’t seem right to many LiPs, that they have to go ‘cap in hand’ to the other party in this way. I suppose it is a minor point of swallowed pride, but it seems to emphasise that they are ‘second class’, in a way that legal aid never did.
And of course the LSO is not available to all. In most cases the other party will not have the means to pay the legal expenses of both sides. Then, the options for the LiP are very limited. They may be able to find a lawyer who is prepared to act for them on a pro bono basis (another suggestion I made to my lady), but as I have also explained here previously, pro bono can never fill the gap left by the abolition of legal aid – there are only enough pro bono lawyers available to represent a fraction of LiPs.
The simple reality is that many people going before the family courts in the 21st century will have to do so with the significant disadvantage of inequality of arms.
Photo by Dun.can via Flickr under a Creative Commons licence.
December 13, 2017
Categories: Family Law