Martin Comport of Dale & Dale solicitors writes in the Law Society Gazette, in the course of a complaint that the Law Society are using funds to campaign in support of legal aid, that

“Perhaps a test [for legal aid] should be: ‘If this was my money would I spend it on this litigation?’ Perhaps the legal aid budget would not have increased had a more stringent financial test been considered and hence such proposed cuts would not now be proposed.”

Good idea. Oh. Wait… Someone thought of it already.

“If the claim is not primarily a claim for damages (including any application by a defendant or a case which has overwhelming importance to the client), but does not have a significant wider public interest, Full Representation will be refused unless the likely benefits to be gained from the proceedings justify the likely costs, such that a reasonable private paying client would be prepared to litigate, having regard to the prospects of success and all other circumstances.” (5.7.4 Funding code criteria).

As Homer would say “Doh!” (not the greek one).

3 thoughts on “Headdesk

  1. they should call it something like a ‘merits test’. then people would know what it was.

  2. But have you ever tried raising this test with the LSC when on the other side? I have. It doesn’t matter just how meritless the case may be, you can’t trust all legal representatives to pull the plug on their client and you certainly can’t trust the LSC to intervene. It’s so frustrating to represent a privately paying client against a publicly funded one, especially in a Children Act application. The incentive to act reasonably is substantially where there is no real cost consequence.

    • Point taken but I have known the lsc pull funding after representations from the other side. It is difficult because often representations are tactically made and based on a very particular view of “the merits” and they can be mischievously made.

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