Incentivising disputes: The Role of Public Funding in Private Law Children Cases

Abstract

This article sets out the findings of a study of 280 publicly‐funded private law children cases and associated interviews. It illustrates how both the cost and duration of such cases have increased substantially over the past few years and suggests that this may partly be as a consequence of increasing complexity. However, the article also illustrates how the legal aid scheme can act to promote delay and cost inflation within family cases. In particular, it illustrates how legal aid practice is susceptible to supplier‐induced demand, how legal aid remuneration rates can encourage inefficient forms of ‘juniorisation’ and how repeat applications to the courts are facilitated by the availability of legal aid. The article also examines the effect of changes which have sought to promote the early resolution of cases. Finally, it suggests that, while reform proposals may go some way towards restructuring incentives to settle cases, the increasing complexity of cases and the centrality of the legal framework in their proposed resolution suggest that the impact of the proposals may be limited.

Keywords:

• legal aid
• costs
• duration
• early settlement
• supplier‐induced demand
• juniorisation

Notes

1. From April 2001, there has been a 10% increase in remuneration rates and a 15% uplift for cases managed by solicitors accredited by the Law Society or SFLA. The uplift was claimed in approximately 50% of cases, although there would have been a proportion of cases where an uplift would have been claimed prior to April 2001.

2. There were only a few cases where it was known whether the other side was privately‐paying or publicly‐funded. Accordingly, it was not possible to include this as a predictor of case costs.

3. See also Kemp, Pleasence & Balmer (2004) for further details of cost drivers in family cases.

4. The mean duration of all children cases in this study was 68 weeks.

5. Of course, a proportion of mediated cases will never progress to a certificate, so the overall proportion of cases resolved through mediation is higher than this.

6. Ninety‐four per cent of cases in this study involved at least one hearing, 90% involved two or more and just over half involved three or more hearings at court. In over a quarter of cases there were five or more hearings and one in twenty involved ten or more.

7. Problems tracking individual clients over different applications through the CIS system, which includes inputting errors, mean that it is not possible to identify the total legal aid cost of these repeat applications. The cost of the case included in this study was £11,279 and the total cost of four associated bills we were able to identify was £37,224.