Public funding for legal representation at inquest: what the recent changes mean
19 Jan 2022
Blog: Civil Litigation partner Kate Maynard explains recent changes to the funding system for legal representation at inquest.
In a rare piece of good news for the underfunded legal system of England and Wales, there has been an important change to public funding for representation at inquests. From Wednesday 12 January 2022, where there is evidence to suggest that state agents (such as police and prison authorities) may have caused or contributed to the death of a family member, legal aid is now available without a means test to cover the investigation and inquest preparatory work (Legal Help – advice and assistance) and for representation at the inquest hearings (Exceptional Case Funding). No financial contributions will be required.
Prior to this date, a waiver of the means test was available for Legal Help and Exceptional Case Funding, but on application to the Legal Aid Agency (LAA), and with full evidence of means supplied. This was an onerous and often demeaning process for bereaved families. A contribution from income or capital could be required.
Crucially, Legal Help can cover disbursements including expert evidence and counsel’s initial advice fees, and Exceptional Case Funding (ECF) covers counsel’s and solicitors’ fees for representation at hearings, including the inquest, and can sometimes cover the out of pocket expenses of the family to enable them to attend the inquest. If families instruct lawyers that do not do this type of legal aid work and only offer private funding options, including stand alone ‘no win, no fee’ arrangements, then they will have to find ways to raise the money for these kind of disbursements. Also, Legal Help funding can cover a wider investigation than the particular scope of the inquest, following the concerns of the family, following the evidence. Legal Help funding is not limited to costs that could be recovered in an associated civil claim.
If Legal Help funding needs to be put in place without being connected to an ECF application for representation, the old requirement to complete the means test remains, both for those financially eligible for public funding and for those applying for a financial eligibility waiver. There may be a number of reasons to put Legal Help funding in place without applying for ECF at the same time, including the fact that the merits test for Legal Help is lower than that for ECF. The lawyer will need to advise the family accordingly. The charity INQUEST and others, continues to campaign to remove the requirement to provide financial evidence for Legal Help funding not connected with an ECF application.
The family’s lawyer must have an existing contract with the Legal Aid Agency which relates most closely to the underlying subject matter of the inquest, such as ‘claims against public authorities’ for police or prison related deaths.
The new rules go some way to afford bereaved families greater dignity in obtaining funding to cover the work of their specialist legal teams.
Where legal aid funding is in scope, families should not have to resort to campaigning and crowd funding to fund their legal representation.
Where an inquest is not in scope for legal aid funding, solicitors, like Hickman & Rose may agree to offer a conditional fee funding agreement (CFA – with discounted hourly rates which could be as low as nil per hour). Offering such discounted fee agreements is a commercial decision for a firm and often contingent on the prospect of later recovering costs from an opponent in an associated civil claim for damages. A conditional fee agreement may be terminated if the prospects of a related civil claim dip.
If in scope, legal aid (where necessary alongside a CFA) is clearly more advantageous than going without legal aid.