Terry & Co.

Legal Aid

 


 

 

 

 

 

 

Whether you are eligible for legal aid or whether your opponent in litigation is legally aided can have very important consequences in litigation. Your solicitor will be able to tell you if you are eligible for legal aid and will be able to provide you with the necessary forms although not all solicitors do legal aid work. Basically, legal aid is granted on the basis of financial need and so you will have to give details of your income and expenditure to the Legal Services Commission. There are, however, certain types of legal work, wills and conveyancing for example, for which legal aid is not generally available.


The Commission also has to be satisfied that you have good legal grounds for starting or defending a case before it will grant legal aid. Preliminary advice can often be given by a solicitor under the "Legal Advice and Assistance Scheme" which is a sort of limited and instant form of legal aid which is available if your means justify it. Legal Aid proper has to be applied for if the case is going to involve litigation and/or substantial legal input.


It is often thought that legal aid is free whereas that is often not so. In criminal cases and ones where no property is at issue it can sometimes be "free" although the client may still have to pay contributions depending on his or her income. More commonly, the Legal Services recovers the money which it spends on a case from the property which is recovered by a successful legally aided client. This is particularly applicable in matrimonial cases. It is true that a certain amount (currently £3,000) is exempt and also that payment can, and very often is, deferred by the Legal Services placing a charge on the property, such as a house, but in those cases legal aid is not "free".


The Legal Aid Board describes the statutory charge thus:-

"If you get Legal Aid, your solicitor's and barrister's bills will be paid for you by the Legal Services Commission out of taxpayers' money. But, if you get money or property with the help of Legal Aid, you may have to put it towarrds these bills. This is called the statutory charge. It means the Legal Services Commission can get back some of the millions of pounds spent each year helping people with their legal costs. You will not have to pay if you lose or your case is exempt or the other side pays all your bills."


It can be seen that there are some technical rules which may need careful explaining. Legal Aid plays a particularly important role in divorce proceedings or, more accurately, in proceedings concerning the matrimonial property and has an unfair effect on the legal costs of the respective parties in any proceedings where one party is legally aided but the other is not.


If one party is legally aided and the other is not then even if the party who is not legally aided is successful in the proceedings he\she cannot usually recover his\her legal costs from the loser as would usually be the case. On the other hand, if the legally aided party is successful then he\she will usually ask for (and receive) re-imbursement of his\her legal costs from the losing party. This puts a legally aided client at a considerable advantage and correspondingly disadvantages the other.


In point of fact, what very often happens in matrimonial proceedings is that the husband cannot obtain legal aid because he is in full time employment. The wife, however, is very often at home looking after the children and so she has no income of her own. This often means that the wife is eligible for legal aid in matrimonial proceedings whereas the husband is not. For reasons such as these the availability or otherwise of legal aid can have important effects in any litigation whether or not one is eligible for it oneself.


Please note that this firm does not undertake any type of legal aid work. If you wish to know whether you would be eligible for Legal Aid then you would need to speak to a legal aid practitioner who will be more familiar with the detail of the rules.