Legal aid programmes vary considerably between countries in relation to scope, cover and level of contribution. Such variations are important in selecting the right forum for a case, as are the variations in cover provided by legal expenses insurance policies. A further determining factor in any decision on legal aid is the existence of contingent or speculative fees and contingent legal aid funds. What are the strengths and weaknesses of the different models, and what are the implications of seeking legal aid in a particular setting?
This paper from a publication of the United Kingdom National Committee of Comparative Law examines the four principle legal aid models: Charitable, judicare, salaried and mixed. It adopts a comparative approach, focusing mainly on the situation in Western industrialised countries. It then presents an overview of the main alternatives to legal aid: Contingent fee, contingent legal aid fund, and legal expenses insurance for groups and individuals.
Due to pressure on the welfare state throughout Europe, spending curbs on legal aid, and in particular the pursuit of value for money and quality assurance in publicly funded legal services, are likely to become commonplace. Other findings from the article are:
- Contingent and speculative fees, properly regulated, could have a residual role to play for those who are ineligible for legal aid or insufficiently prescient to foresee that they are likely to be involved in international litigation
- Unless contingent legal aid funds become more widespread there will still be the problem of paying for the other sides’ legal costs
- Any discussion of the comparative financing of civil legal actions must be viewed in the larger context of the differing remedies and juridical procedures available in different countries
- Genuinely planned and integrated examples of the mixed model are few and far between.
The ideal way forward for Western countries is a legal aid model that involves a mixture of judicare and salaried elements (the mixed model). The potential problems of access in rural jurisdictions and the erosion of the free choice of lawyer principle, which result from the changes underway in Europe, reinforce this proposal.
- The emphasis on accreditation which results from spending curbs will be beneficial to international litigators since it will enable them to identify legal aid specialists more easily from abroad
- There is a need for better information systems concerning the scope and availability of legal aid in different countries
- The variations in the scope of legal aid between countries makes it very difficult for rational actors to select a legal expenses insurance policy to cover the gaps
- Greater predictability of legal costs would help rational planning by potential insureds and by insurers endeavouring to set a realistic premium for worldwide cover
- Governments are likely to have varying degrees of success in simplifying procedures or pursuing Alternative Dispute Resolution, and this will further complicate matters for international litigators.
