Topic 6 Access to justice

BG:
a) BL 24 (equality before law)
BL 35(constitutional right to timely legal advice and access to courts)
ICCPR 14+BORO: fair hearing and free legal service if necessary
b) Government Legal Aid objective
reasonable groundscan take legal action without means diffucilty
c) David Luban:
access to minimal legal serviceaccess to legal systemequality of legal
rightslegitimacy of government
Different measures in force:
1. Legal Aid Department (LAD)
-under control on Legal Aid Ordinance (LAO), operated and funded by
government
-in courts above district courts
-advised by Legal Aid Service Council (review and advice only)
a) Ordinary Legal Aid Scheme (OLAS)
- <$175800, merit test-reasonable
*can be waived if about BORO/ICCPR or criminal cases
b) Supplementary Legal Aid Scheme (SLAS)
-Self-financing, funded with contribution
-$175800-$488400, sandwiched class
-(1) personal+fatal injuries, (2) medical+legal negligence, (3)employee
compensation claims
c) Pilot Scheme on Legal Aid in Mediation in Matrimonial Cases
-both side fee borne by LAD
-will not affect application of other legal aids
regardless of identity (local/non-locals)
Deductible allowance and Financial Eligibility Limits
elderly, children, spouse
2. Duty Lawyer Scheme
-Funded by government, operated by Bar Asso and Law Soc
a) Duty Lawyer Scheme
-$122000, at risk of loss of liberty
-Coroner court, juvenile court, magistrates courts
b) Free Legal Advice Scheme

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5.

c) Tel-Law: 78 topics in 8 areas

Bar Free Legal Advice Scheme
Consumer Legal Action Fund
-Consumer Council
-no mean test, if winadmin fee and contribution
-practitioners selected by council
Equal Opportunities Commission (EOC), legal assistance: more conciliation
conciliation: more prone to difference in bargaining power,
legal advice in conciliation?

Conditional Fee (US, Canada)

Advantages:
1. Broaden access to justice
-margin of legal aid
2. Judicial economy, lower cost and delays
3. Integrity of judicial process, guarantee sufficient standards of lawyers
4. competitionrise in quality of legal service
5. provide incentive for lawyers
Disadvantages:
1. frivolous claims
2. may breach cab-rank rule (cannot select clients)
3. HK: lack of insurance company interested (to cover court fee if lose)
Possible formats
a) no win no feeencourage nuisance lawsuits
b) no win lower fee
c) win higher feemay breach cab-rank rule, encourage lawyers to select better
clients
d) win % of damagesencourage desperate attempts to claim damages
Suggestions:
1. limit application of conditional fee to primary remedy cases
2. legislation on success fee+staged success fee+cap on success fee
3. Client-care provisions to encourage trivial claims settlement within professional
bodies
4. Independent body (Conditional Legal Aid Fund) in screening merits
-not profit-oriented, contribution from winning cases
-encourage mediation
5. Expanding SLAS