Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany
Table of contents
For the past decades, the welfare state systems of most developed
countries, including Britain and Germany, have been grappling with
the task to combine the need for governments to constrain growth
in costs with their responsibility to effectively cater for the
needs of the less affluent members of society in order to
safeguard set minimum social standards. Forming one component of
these arrangements, the provision of legal aid services for the
impecunious is widely implemented today as a means to ensure equal
access to justice. The latter is deemed to constitute a necessary
condition for democratic societies,1 and both countries under
consideration for this article2have established state-run and
publicly funded legal aid systems in order to meet this
requirement. However, rising levels of expenditure, especially in
England,3 have repeatedly sparked
critical discussions concerning sustainability and effectiveness
of the systems, most notably in the wake of the recent global
economic downturn. In this light, the following chapters seek to
examine the legal aid schemes of England and Germany in an attempt
to identify and juxtapose current and future challenges as well as
potential solutions to pressing issues.
From medieval times until the early 20th century, legal aid in
England was delivered to the impecunious pro bono publico (literally,
‘in the public good’) under a so-called ‘charitable model’. This
approach to legal aid, characterized by gratuitous services
voluntarily provided by members of the legal profession,
overwhelmingly suffered from poor funding and inadequate coverage.18
Even though a basic notion of free and universal access to justice
was spelt out in the Magna Carta as early as 1215,19 it was not
until 1495 that the in forma pauperis statute was passed
which contained provisions for self-declared paupers to be exempt
from court fees and given free legal representation. Despite this,
access to legal help for the poor remained heavily restricted with
means and merits tests introduced at the same time in order to
curb to growing demand and alleged misuse.20
With this report at the latest the underlying philosophy of legal
aid in England had clearly shifted from a charitable service
performed by more or less willing lawyers to a social service “to
which people had a right of access as part of the Welfare State”.42
Rushcliffe envisaged a comprehensive scheme covering 80 per cent
of the population and including all courts, tribunals and
coroners' proceedings. Deposit payments introduced under the Poor
Persons Rules were to be abolished, the means test was relaxed
considerably and even out-of-pocket expenses should be covered by
the fund provided to the Law Society by the Treasury.43
Moreover, the scheme was also supposed to include free legal
Similar to early developments in England, prior to the 19th
century legal aid in German states was solely available out of
charity. In Roman times, this was perceived as an act of imperial
mercy whereas in medieval times it was regarded as a benificium
(favour, benefit) provided to the indigent by lawyers under the munus
honorificum convention.59 During the 19th century, a
gradual transition took place to the notion of legal aid as a
formal right granted to the poor because it was believed to be a
duty of the state to provide these services. This set the emerging
German system apart from its English counterpart which at that
time was still strictly operating on a charitable basis.60
Influenced by Enlightenment theories, the idea of providing access
to justice for the poor was seen as an imperative of
humanitarianism. Many German states set up different codes of
procedures for civil and criminal cases which included provisions
for legal aid. While means tests were applied universally, merits
tests in relation to the prospective success of cases were not
without controversy, with some states arguing that these
additional tests would put a poor person at disadvantage compared
to more affluent citizens. However, others supported the idea of
merits tests referring to the dangers of system abuse in the form
of 'unnecessary' or 'malicious' litigation.61
Material changes resulted in much more citizens now qualifying for Prozeßkostenhilfe than before and a scale was introduced which allowed assessment of means and contributions on a formalised basis. Furthermore, for the first time proceedings before the Sozialgerichte (“Social Security Courts”) and in matters involving IP-disputes were assisted. From a procedural point of view, the procedure for obtaining a PKH grant was streamlined. For example, the requirement to produce a “proof of poverty” issued by the welfare authorities was disposed of. For the first time, a person qualifying for “legal aid” had a right of free choice of counsel. For proceedings before the county courts (Amtsgerichte) where there is no statutory requirement for representation by counsel, the right of the indigent party to be represented was introduced, provided that the opponent was represented as well.93
The Beratungshilfegesetz not only strengthened the position of the indigent in need of out of court legal advice and representation but also the legal profession’s de facto monopoly in this field. It considerably restricted the areas of law on which advice could be given out by non-lawyers. Consequently, the number of licensed non-lawyer legal advisers who, until 1980, were allowed to provide general legal advice dropped down in 2003 to a mere 382, compared to roughly 132,000 legal practitioners.94 The advice scheme proved to be successful and its budget has continued to grow at a faster pace than its civil counterpart, PKH. Despite this, it still accounts for only an estimated ten per cent of the overall civil legal aid budget. The latter has risen considerably over the past two decades but is still nowhere near English levels.95This is one of the reasons why the topic of legal aid in connection with public expenditure has rarely attracted as much national and political attention as its English counterpart. Nevertheless, certain deficiencies of criminal proceedings, namely the absence of a statutory right to free legal assistance during the first three months of provisional detention, were argued to be incompatible with Article 6 of the ECHR.96 Despite the existing criticism, it took until 2009 (!) for the German legislators to change the rules by passing the Gesetz zur Änderung des Untersuchungshaftrechts.97
The Access to Justice Act (AJA) 199998 constitutes the
relevant body of law for legal aid in England. It is complemented
by an abundance of secondary legislation (regulations, orders,
directions) and guidance documents issued under the Act, for
example concerning scope, eligibility and funding.99 Part I of the
1999 Act established the Legal Services Commission (LSC)
administrating the Community Legal Service (CLS) and the Criminal
Defence Service (CDS). The LSC is mainly responsible for securing
the provision of legal services by allocating resources provided
by the Lord Chancellor who is vested with powers to give orders,
guidance and/or directions to the Commission.100
Section 4(1) of the AJA specifies that CLS services are only available for individuals thus excluding companies or other legal persons. In order to determine whether a client is eligible for civil legal aid the aspects of scope, merits and means are considered. Managed by the LSC and capped at a sum to be fixed annually by the Lord Chancellor, a CLS fund set up under section 5 of the Act “is used to secure the provision of appropriate legal services within the resources made available to it, and according to the priorities set by the Lord Chancellor and by regional and local assessments of need”.102 Restricted to matters of English law, the scheme makes further exceptions in scope relating some excluded areas of work. Hence, any forms of legal help and representation in proceedings are explicitly not available for
The scope of legal aid advocacy is restricted to proceedings at
courts listed in paragraph 2 of Schedule 2.104 However,
section 6(7) of the Act states that, in specified circumstances,
it is within the discretion of the Secretary of State for
Constitutional Affairs to amend the lists in Schedule 2.
Only contracted private practice solicitors and barristers
holding a quality mark or public defence lawyers127 employed by
the Commission can take up work funded under the CDS.128
defendants in receipt of income support,
income-based jobseeker's allowance, or the guaranteed state
pension credit are [automatically] deemed financially eligible, as
are defendants under the age of 16, or under the age of 18 and in
Since 2010 means testing also applies to Crown Court proceedings.136
At this level of court and above, even if financial eligibility
has been established, the courts can order the applicant to pay
the full costs of representation or a contribution based on means.137
However, it should be noted that for defendants in proceedings at
the Crown Court or higher criminal courts it will automatically be
in the interest of justice to be represented. This is also
connected to the fact that the British government has an
obligation under the ECHR to ensure that every citizen who is
accused of a crime has access to a fair trial138 which is
reflected in section 6 of the Human Rights Act 1998 (HRA).139
As stated above, the question is whether, dependent on their
respective level of income, recipients of criminal legal aid
services will be ordered to make a full or partial contribution to
the HRA certainly has an immediate impact on criminal legal aid
cases, this does not apply in the same manner for civil legal aid.
Article 6 of the ECHR does not constitute an absolute right to
legal aid in all civil cases where applicants are unable to pay
for proceedings on their own. Nevertheless, legal aid may be
required by Article 6 if the case or proceedings are too complex
for individuals to represent themselves or in circumstances where
legal representation is compulsory.141
Legal aid in Germany is neither governed by a single act as it is
the case for England, nor is there a central body equivalent to
the LSC administering the German legal aid scheme. Instead, the
provisions for the German ‘tripartite’ system of Prozesskostenhilfe
– PKH (civil legal aid for court proceedings), Beratungshilfe
– BerH (civil and criminal legal aid for out-of-court advice and
as well as Notwendige Verteidigung (criminal legal aid
for mandatory representation) are contained in either individual
statutes (e.g. the Beratungshilfegesetz) or in the
different codes of procedures of the relevant courts, most notably
paragraphs 114 – 127 of the Zivilprozessordnung (ZPO).
As the courts receive and decide on applications for legal aid,
some essential information about the structure of the German court
system is required for a proper understanding of the legal aid
Furthermore, the courts can order representation to be mandatory
for cases involving highly complex questions of law, for very
grave offences or in cases where the accused appears to be unable
to defend himself.177 The defendant has the right
to a lawyer of his own choosing whereas, should he not wish to
exercise this right, the court will assign an advocate of its
The legal aid sector accounts for roughly ten per cent of the legal market in England and the LSC increasingly envisions itself as the ‘demanding consumer’ shaping the market by acting on behalf of the client rather than a mere administrator of existing legal aid services.194 This has been labelled a “‘purchaser-supplier’ approach, where a funding agency purchases a set of services”.195 With currently 1,700 staff working in 13 offices across the country, at first glance the LSC is somewhat of an institutional heavyweight which costs the taxpayers £120 million annually.196 The simple fact that the LSC exists in this form is in itself proof for the (political) importance of legal aid in England. In this sense, England’s legal aid system centred around the LSC and based on so-called ‘market-led approaches’ to efficiency in the delivery of legal aid allows for a sound basis of resources, in part due to the high level of documentation. The German model, not least because of its administrative organisation, is far less generous in this respect.197 Consequently, a significantly smaller part of the data described below will be available for comparison in the case of Germany.
The LSC’s aim to ensure the delivery of quality and cost
effective legal aid is to be realized through a total of 4,087
contracts (2,390 civil and 1,697 crime) held with legal service
providers as of 2010.198 Overall, more than 400
different organisations are contracting with the Commission
including solicitors, not-for-profit organisations, barristers and
HMCS. The majority of civil contracts exist with private practice
solicitors amounting to 2,058 in 2010 compared to 332 contracts
with not-for-profit organisations. The number of law firms
undertaking legal aid dwindled considerably over the past years
and was down 50 per cent compared to 1991/92. This is mainly
attributed to the LSC’s policies of contracting and kite marking,
the introduction of a compulsory service quality certification
mark for legal aid firms. For many smaller firms the bureaucratic
hurdles simply became too high and they found themselves unable to
make legal aid work pay, not least because of the introduction of
fixed fees for the majority of civil cases resulting in profit
cuts of more than 40 per cent.199 While the decrease in
suppliers was achieved intentionally by the Commission in order to
promote fewer, larger firms offering a broader range of quality
legal aid services, there have also been negative side effects.
Most obviously, geographical coverage suffered with the result of
many clients from rural areas having to travel for hours to see a
legal specialist who offers legal aid services.200 The
situation is exacerbated by a recruitment crisis, the continuous
trend of less and less trainee solicitors opting for a career in
the field of legal aid because of the poor pay.201
The CDS dealt with a total of 1.5 million acts of assistance in 2009/10, most of which related to services at lower court levels (80 per cent). Compared to 2000/01 this is an increase of 200,000 cases.214 Police station and magistrates’ court legal aid work accounts for 55 per cent of all LSC funded acts (including civil) compared to only five per cent for Crown courts and higher courts. Despite the introduction of means testing at magistrates’ court level “[…] over 91 per cent of defendants applying for legal aid were granted it”.215 Apart from duty solicitors providing face-to-face advice at police stations the LSC also established CDS Direct, a telephone advice service for people detained by the police and suspected of less serious offences. The Defence Solicitor Call Centre (DSCC) administers all incoming request from police stations and allocates solicitors to give advice either in person or via telephone depending on the individual circumstances of the respective case. This service is available 24 hours per day providing more than 850,000 acts of assistance in 2009/10.216 Studies by the European Commission for the Efficiency of Justice (CEPEJ) on European judicial systems reveal an important indicator in terms of expenditure: the total number of 297 criminal legal aid cases per 10,000 inhabitants in England is by far the highest of all 45 participating countries.217
Due to Germany’s administrative structure (see 3.1.2) and in the
absence of a central body such as the LSC, the implementation of
the legal aid schemes is entirely within the discretion of the 16
federal states. Even though the Bundesministerium der Justiz
does collect some data on legal aid for court proceedings on
a federal level, this is limited to the number of civil legal aid
cases before the Amts-, Landes- and Oberlandesgerichte.
According to these, a total of roughly 95,000 civil legal aid
cases were granted in 2009.218 It is worth noting again
that this only includes civil legal aid for court proceedings
(PKH). Interestingly, the CEPEJ study 2008 (2006 data) indicates
an average number of 72 civil legal aid cases granted per 10,000
inhabitants (England: 198) - which equates to almost 595,000
As the relevant source for the study is the German Ministry of
Justice, the enormous difference in figures seems to be
astonishing and difficult to explain.220 This goes to
show that the information available from the different Länder
which the Bundesministerium der Justiz relies on for its
statistics can apparently be quite erratic and is thus to be taken
with a pinch of salt.221 For out-of-court advice and
assistance (BerH) basic statistics compiled by the Federal
Ministry of Justice including data of 14 states222
are also available. Accordingly, the total acts of assistance for
BerH amounted to roughly 880,000 in 2006 and 900,000 in 2010
Between 2000 and 2006 this number has more than doubled while
applications for PKH have ‘only’ risen by roughly 20 per cent
during the same time.224 Hence, a strong demand for
legal aid services can also be observed in Germany. For criminal
legal aid almost no data is available except for some expenditure
details of individual states (see ch.4.2.2). Civil legal aid for
court proceedings is granted in roughly 80 per cent of cases of
which the majority are family disputes (80 per cent).225
The attractiveness of litigation insurance is
twofold: For the insured, a litigation insurance, unlike legal
aid, covers the opponent’s costs in the event of a negative
outcome of the court proceedings. The insurer, on the other hand,
can offer insurance premiums at relatively low cost as her risk is
easily calculatable [sic]: The insurer pays the lawyer’s fees
according to the scale of fees.230
In addition to the favourable conditions for LEI in Germany concerning risk calculation, it should also be noted that the longstanding non-existence of alternative funding mechanisms contributed to its successful development. Apart from criminal and family law cases where legal aid proves to be of vital importance, insurance policies are available for all other areas of civil law, most notably traffic, tort, contract/property, employment and landlord & tenant law. However, LEI is restricted to legal representation in specifically insured events (provided they have not been triggered by a wilful act of the insured) and does not cover general legal advice. Further limitations become apparent from empirical data on the distribution of LEI among households with limited financial resources. People on low income who would be most likely to qualify for legal aid give LEI a much lower priority resulting in a significantly reduced coverage of households in lower income brackets. Consequently, any government attempts to cut back legal aid budgets in the hope that “those excluded by legal aid in the future will take out insurance cover would be a rather optimistic approach”.231 The danger of a significant proportion of those excluded from legal aid being left completely unprotected would simply be too high and is therefore one important factor when considering the introduction of an insurance scheme based on the German model in another country.
It has been widely acknowledged that the direct comparison of national legal aid expenditure figures should be treated with care due to differences in the legal systems, legal aid terminology and data collection procedures.232 All data presented below are thus intended to be more of a reference point from which to determine general trends. In order to establish some degree of comparability between spending levels of the two countries under consideration, the following remarks on England’s legal aid budget will, where necessary, also refer to the Euro currency stated in brackets. A significant amount of data used for this section is derived from the 2008 edition of the aforementioned CEPEJ study as Germany was unable to submit data for the latest 2010 report.233
In 2009/10, net legal aid expenditure in England was £2.23
(2.5) billion, up £150 (168) million from the year before
and almost three times higher than in 1988 when, at today’s
prices, it was £835 (935) million. A total of £1.12
(1.26) billion was allocated to the CDS which left £1.11
(1.24) billion for the CLS. 234 While this sounds alarming
and is certainly presented in such manner on the political stage,
critics argue that this amount would not be enough to keep the NHS
afloat for more than two weeks. Furthermore, it is claimed that in
real terms funding for civil legal aid has actually decreased by
24 per cent over the past ten years.235
Nevertheless, by international standards England’s per capita
spending on legal aid of €56 (France: €4.8) is very high. As
hinted at above, one of the main reasons for this is the great
volume of cases supported: 495 compared to 254 legal aid cases per
10,000 inhabitants in the Netherlands, the second highest number
in Europe. It has not been possible yet to clearly identify the
exact drivers for these high numbers but, according to Bowles and
Perry as well as Richard Moorhead, the generally greater
proportion of cases brought to court could be one explanation.236
As noted above, there is no national legal aid budget in Germany
but “all 16 federal states fund legal aid through the budgets of
the departments in charge of their court systems”.244 Bearing in
mind that there are five different court systems in every Land,
this leaves Germany with at least 80 legal aid budgets making up
the total national expenditure.245 It seems almost impossible
to gather all relevant data as the matter is further complicated
by the fact that the states do not employ uniform auditing
strategies. Some Länder do not list legal aid
expenditure separately but file it under their overall court
budgets, whereas others do not distinguish between criminal and
civil legal aid expenditure. Last, but not least, it is difficult
to calculate the net spending of the states as contributions made
by some of the recipients of legal aid are mostly collected by the
respective courts themselves resulting in this revenue simply
flowing back into the general courts budget.246 Under these
circumstances, determining Germany’s overall national legal aid
expenditure can only be an educated guess.247 The 2006
figure of €557 million provided in the 2008 CEPEJ report on
European judicial systems is of limited validity, not least
because it could be shown that the corresponding number of civil
legal aid cases is somehow questionable. Furthermore, it only
refers to costs for PKH at the courts of general jurisdiction thus
excluding PKH for specialised courts, out-of-court legal advice
and assistance (BerH) as well as criminal legal aid.248
Based on the information available from both literature and
official statistics and subject to several assumptions, the total
legal aid expenditure will be estimated as follows.
Throughout its history legal aid in England has been subject to a
vast number of amendments and reforms. The budget has always
figured very prominently in reform discussions and proposals, most
notably since the sharp rise in expenditure during the 1980s, and
the most recent announcements of the British government are no
exception here. In November 2010, as a part of the Ministry of
Justice’s contribution to the Comprehensive Spending Review (CSR)
aimed at tackling the public deficit, Justice Secretary Kenneth
Clarke presented plans for reform of the civil legal aid system
allegedly leading to “a more targeted civil and family scheme
which will discourage people from resorting to lawyers whenever
they face a problem, and instead encourage them to consider more
suitable methods of dispute resolution".263 In their
consultation paper Government emphasize their ambition to make the
justice system simpler and more responsive to people’s needs while
at the same time aiming to provide legal aid services only “for
the most serious cases in which legal advice or representation is
The bottom-line of the announcements is an envisaged budget
reduction of £350 million over the next four years which is
to be achieved through cuts in scope and eligibility as well as a
ten per cent reduction in fees for civil and family cases. The
latter could result in legal aid firms losing more than £150
million annually putting pressure especially on smaller firms. In
terms of scope
[t]he categories proposed to be cut from the legal
aid scheme are: private law children and family cases where
domestic violence is not present; education; immigration where the
individual is not detained; clinical negligence; ancillary relief
cases where domestic violence is not present; employment; welfare
benefits; debt matters where the client’s home is not at immediate
risk; consumer and general contract; Upper Tribunal appeals; tort
claims; legal help for Criminal Injuries Compensation Authority
applications; and some housing matters. 265
If implemented the cuts would result in nearly 550,000 cases per
year being no longer funded by legal aid, including 265,000 family
cases whereas for the latter mediation services would still be
available. This is likely to be accompanied by tighter eligibility
criteria meaning that only those with up to £1,000
disposable capital (until now: £3,000) would receive full
legal assistance. Above this threshold a minimum contribution of
£100 would become payable. The disposable income margin
would remain the same whereas beyond that contributions could
rise. Changes for criminal legal aid would only entail a switch to
stricter graduated fee schemes in very high cost criminal cases in
order to curb expenditure.266
Views were clearly split amongst respondents. Most claimant representatives and ATE insurers argued strongly that recoverability should remain, in full or in part in order to maintain access to justice and preserve damages for claimants. On the other hand, defendant representatives and general liability insurers were more united in their views in support of Sir Rupert’s primary recommendations: that recoverability of success fees (and ATE insurance premiums) should be abolished. They pointed to the disproportionate costs caused by the current regime, and did not believe that genuine claims would be disadvantaged.279
The latter view is shared by the British government even though it was also acknowledged in the report that the related costs form but one part of the cause for overall high expenditure levels.280 In a nutshell, none of the responses received had a profound impact on Jackson’s original reform proposals. Government believes those to be unavoidable in order to bring down costs and tackle the development of a so-called compensation culture.281
Apart from the German government’s reforms described above on
cost rules (2004), conditional fee agreements (2008) and criminal
legal aid for suspects in pre-trial detention (2009), for many
years no substantial legislative changes directly affecting legal
aid in terms of scope or eligibility have been made. In March
2010, triggered by rising expenditure levels the Bundesrat
presented a bill on (cost-)containment for PKH (Prozesskostenhilfebegrenzungsgesetz)
to the Bundestag.282 Based on a 2006 draft by the
Ministry of Justice of the state of Baden-Württemberg, the
proposed measures include an increase of contributions on the part
of the legal aid recipient, tighter eligibility rules, the closer
scrutiny of applicants’ personal and financial circumstances and
the possibility for judges to delegate the task of checking PKH
applications to a Rechtspfleger, a senior court officer.
Besides the aim of curbing expenditure the bill is also supposed
to tackle the issue of spurious claims for PKH. The total savings,
if implemented, are expected to amount to roughly €95 million.283
In line with the established principle of PKH being available for
all areas of civil law, no reductions in scope are envisaged.
As could be shown in the previous two sub-chapters there is great disagreement over how to tackle the (financial) challenges for both legal aid systems whereas everybody involved seems to see the necessity of reform. The most important question remains unsolved, namely which of the alternative solutions would be appropriate to create a fairer and even more comprehensive scheme which is more user-friendly and at the same time more cost effective. While there is consensus on there being no panacea to cure all shortcomings of the two systems, ideas on how to approach the problems are multifaceted and not infrequently related to the respective (professional) position of the person expressing this view. The following examples offer no more than a short overview of mooted possible solutions whereas their potential suitability as a replacement of the state-run schemes will be evaluated. Once again, the priority status of legal aid in England is responsible for a broader range of publicly discussed proposals than it is the case in Germany.
One of the UK government’s favoured solutions to the cost problem
of legal aid seems to be alternative dispute resolution (ADR), and
mediation in particular, as this is featured in both current
legislation as well as the most recent reform proposals.
Essentially, ADR refers to making use of a third person such as a
mediator or an ombudsman for resolving legal conflicts between
parties without resorting to a court procedure. The main reason
for choosing such arrangements is to avoid the costs of a
solicitor and of using the courts. ADR takes various forms, the
most important of which are negotiation, mediation, conciliation
As concerns legal aid, mediation in family disputes is currently
of paramount interest not least because of the substantial saving
potentials, with an average cost of £1,000 for ADR resolved
divorce issues as compared to £4,000 if litigated at court.
Apart from that, it is considered to be a quicker and more
harmonious way of settling disputes which, if successful, can
result in a legally binding agreement, usually in the form of a
Total savings of approximately £90 million in 2009
encouraged English legislators to introduce new rules for
divorcing couples which “make it obligatory to consider mediation
by attending a Mediation Information and Assessment Meeting but
[it is not] compulsory to actually commit to the process
However, mediation is not universally applicable to all cases and
it has been argued that especially more complicated matters tend
to be either as costly as court proceedings or even entirely
unsuitable for this form of ADR.295
Furthermore, Lord Neuberger warned that the fundamental right of
effective access to courts could not be substituted by an
increased use of mediation.296The
evident advantages of mediation are thus confined to a selection
of civil cases and the financial gains for the English legal aid
system are moderate when compared to the total spending on legal
aid. The fact that, despite the announced cuts to legal aid, the
procedure will still be available in family law disputes is
nevertheless some light at the end of the tunnel for English legal
In 2010, the former shadow justice minister Henry Bellingham
called for the promotion of LEI in England where only one per cent
of the population is covered by stand-alone general LEI compared
to more than 40 per cent in Germany.299 The idea of
introducing a similar scheme was already floated in the early
1990s by the then Lord Chancellor’s Department.300
In order to determine whether it could be possible to establish a
similar LEI market in Britain which could take the pressure off
the public purse concerning legal aid, various factors have to be
considered. Most importantly for LEI to be successful the costs
should be calculable to a relatively great extent as otherwise the
high economic risk resting with the insurer would result in very
high policy premiums. The latter, in turn, would render LEI very
unattractive to the majority of the population. Despite the
increasing usage of fixed fees, England’s remuneration structures
for lawyers still remain less predictable than the German fee
scales. This lack of predictability constitutes one major obstacle
for the expansion of LEI in England.301 Secondly,
there is an issue of culture differences, combined with the fact
that LEI in England is mostly sold as a cheap add-on or even given
away for free with motor and household insurance policies. Many
English people are often not aware that they have some form of
add-on LEI (59 per cent of the population!) according to a 2007
report of the MoJ. Furthermore, those who do know about their
policies tend to be not sure how to use it.302 When asked
in a survey on consumer expectations towards the legal services
market, 64 per cent of 2,000 people said they would not be willing
to pay £75 annually for a stand-alone LEI policy which
covered all their unforeseen legal needs (i.e. excluding will
writing and conveyancing). With only 14 per cent of the
respondents recognising the potential value of this insurance
product it seems obvious that a lot of hard work would be
necessary to convince a majority of the English people to take out
this form of LEI. The reason for this attitude can be found in
their opinion on the state’s role concerning legal aid services as
68 per cent agree with the following statement:
If someone was too poor to afford a lawyer and they
had a need for serious legal advice (e.g. they believe they have
been sacked unfairly, fear they might lose their home following an
argument with a landlord etc) the state should pay for their legal
advice through the legal aid system.303
In times when eligibility for legal aid is actually decreasing it is rather surprising that the majority of people “still have that expectation of the state safety net” while at the same time there is “a strong culture of not trusting insurers”.304 On top of that, the inherent limitations of LEI as regards criminal and family law cases as well as its distribution among lower income groups has to be borne in mind. Hence, LEI is certainly not an easy fix for England’s legal aid woes but would require profound structural changes not only in terms of legislation.
The much-touted ‘legalisation’ of CFA in Germany has been labelled an imposed reform which did not equate to a full repeal of the former prohibition.305 As discussed above (towards the end of ch. 3.2), the scope of CFA in Germany is rather restricted and, at least in theory, only intended to encompass those in need of help to gain access to the courts. As opposed to England where it had been obvious from the outset that CFA would also serve as a means to support, if not even partly replace legal aid, no similar discussions emerged in Germany.306 The main advantages of CFA are thought to be for claimants “unable to qualify for legal aid after the threshold for entitlement had been lowered”.307 Theoretically a win-win situation, the legal aid budget could be cut back with taxpayers being less burdened while at the same time access to justice for the less affluent would be preserved or even widened and lawyers could expect higher incomes as CFA open up new business opportunities. CFA may relieve a claimant’s worries about losing a claim, while potential defendants can benefit from a reduced number of spurious claims brought as “losing parties will still be liable to pay the other side’s costs”.308 However, as lawyers will carefully weigh the chances of success before entering into a CFA, this might result in cases of limited success prospects being turned down which may be reasonable in the light of current legislation but does not necessarily equate to ‘justice’ for the indigent. It was even argued that these arrangements could tempt lawyers to act unethically in order to win a case. Moreover, bearing in mind that hourly remuneration is still the norm for advocates in England, a lawyer “[…] may have a financial interest in encouraging his client to go on with an open-and-shut case, increasing his own fees”.309 The most crucial finding, however, is the fact that it is debatable whether CFA will actually benefit those in need of support. English studies could show that CFA play a vital role in ensuring access to justice for people ineligible for legal aid “but may constrain the types of claims that are brought by those clients. In particular, both higher risk, more expensive and low value claims may all be affected by this”.310 In a German survey on CFA in practice it was revealed that only medium-sized or bigger law firms with a clear focus on commercial clients tend to make use of the new fee. Lawyers mostly dealing with private clients are rarely even asked about the possibility of entering into a CFA. Hommerich thus concludes that in Germany it remains highly questionable whether access to justice will be (positively) affected at all. After all, CFA are still only a form of fee arrangement rather than a funding mechanism allowing for a shift of financial responsibility from the state to the private sector.311
England and Germany are both confronted with ever increasing
costs for their legal aid systems which have been established to
support the less affluent members of society facing legal
struggles. At face value, Germany appears to be in a superior
position to tackle the problem as their system is less prone to
cutbacks due to its lower expenditure in connection with a highly
developed LEI market supporting the public purse by shifting the
financial burden to the private individual. England, to a
comparatively greater extent, is still struggling with the
repercussions of the global financial crisis resulting in higher
unemployment and even greater demand for state-funded legal
services. This is exacerbated by overall high costs for a legal
aid system which was created with high ambitions after the Second
World War, but which soon had to face the harsh reality of
financial impracticalities. In this context, England’s (hourly)
remuneration system for lawyers, resulting in relatively high
costs for going to court, should be seen as one of the most
decisive factors hampering the development of the legal aid
system. From a historical point of view, England had long been
reluctant to engage in a comprehensive scheme equating to a basic
right to legal aid as it had emerged in Germany and was basically
forced to adopt a different stance mostly because of the pressing
need to finance the growing number of divorce proceedings for the
* Master of British Studies, Humboldt-Universität zu Berlin.
1 Acknowledged in the European Convention of Human Rights, Article 6, as well as in the German Grundgesetz and the British Human Rights Act 1998.
2 The following remarks will focus on the legal aid systems of Germany as well as England and Wales, rather than the whole of the UK. Separate schemes exist in Scotland and Northern Ireland. For the sake of readability England and Wales will hereinafter be referred to as England.
3 In 2006 England spent an internationally unrivalled record sum of three billion Euros annually. See European Commission for the Efficiency of Justice (CEPEJ), ‘European Judicial Systems – Edition 2008 (data 2006): efficiency and quality of justice’ (Council of Europe 2008) <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694089&SecMode=1&DocId=1314568&Usage=2 > accessed 25 February 2011.
4 See Julia Kollewe and Ashley Seager, ‘Sharp rise in unemployment as financial crisis hits jobs market’ The Guardian (Guardian.co.uk 15 October 2008) <http://www.guardian.co.uk/business/2008/oct/15/unemploymentdata-recession> accessed 25 February 2011; International Labour Office, ‘Global Wage Report: 2009 Update’ <http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_116500.pdf> accessed 25 February 2011.
Steve Schifferes, 'Crisis 'cost us $10,000 each' ' (BBC News, 10
6 T.C., ‘The British economy: That shrinking feeling’ (The Economist, 25 January 2011) <http://www.economist.com/blogs/blighty/2011/01/british_economy_0> accessed 20 February 2011.
7 Schildbach (n 5); Deutscher Bundestag, ‘Kosten der Finanz- und Wirtschaftskrise und Beteiligung des Finanzsektors’ Drucksache 17/2294 Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Dr. Carsten Sieling, Nicolette Kressl, Joachim Poß, weiterer Abgeordneter und der Fraktion der SPD – Drucksache 17/2054 (2010) <dip.bundestag.de/btd/17/022/1702294.pdf> accessed 6 November 2011.
8 dpa (Deutsche Presseagentur), ‘Preisschild für Finanzkrise: 10,5 Billionen Dollar’ (Wirtschaftswoche Online 28 September 2009) < http://www.wiwo.de/unternehmen/finanzkrise-preisschild-fuer-finanzkrise-10-5-billionen-dollar/5572076.html> accessed 6November 2011.
9 Suffolk County Council, ‘The Effects of Recession & Those Most at risk’ (October 2008) <http://www.suffolk.gov.uk/NR/rdonlyres/320E5D8B-E2DE-49E8-976A-95C87541D97F/0/EffectsoftheRecessionandThosemostatRisk.pdf> accessed 20 February 2011.
10 David Brindle ‘Recession's threat to vulnerable people’ (The Guardian, 22 April 2009) <http://www.guardian.co.uk/society/2009/apr/22/social-care-older-people> accessed 20 February 2011.
11 Suffolk County Council (n 9). The German labour market has since witnessed a remarkable recovery, but the medium term prospects remain uncertain. See Bundesagentur für Arbeit, ‘Der Ausbildungs- und Arbeitsmarkt in Deutschland, November 2011‘ < statistik.arbeitsagentur.de/Statischer-Content/Arbeitsmarktberichte/Monatsbericht-Arbeits-Ausbildungsmarkt-Deutschland/Monatsberichte/Generische-Publikationen/Monatsbericht-201111.pdf> accessed 1 December 2011.
12 See Martin Hickman‚ ‘Broke Britain: millions face struggle to stay afloat as financial crisis hits home’ (The Independent, 2 January 2008) <http://www.independent.co.uk/news/uk/home-news/broke-britain-millions-face-struggle-to-stay-afloat-as-financial-crisis-hits-home-767584.html> accessed 20 February 2011; Antje Schüddemage ‘Finanzkrise kommt in deutschen Haushalten an’ (Frankfurter Rundschau, 30 September 2009) <http://www.fr-online.de/wirtschaft/finanzkrise-kommt-in-deutschen-haushalten-an/-/1472780/4692090/-/view/asFirstTeaser/-/index.html> accessed 20 February 2011.
13 John Flood, 'The Transformation of Access to Justice in England and Wales 60 Years on' (Colóquio Internacional O Acesso ao Direito e à Justica da Familia em Transformacao, Universidade de Coimbra, 2009).
14 Toby Helm, et al, (The Guardian, 16 October 2010) 'George Osborne takes spending axe to prisons and legal aid' <http://www.guardian.co.uk/society/2010/oct/16/george-osborne-prisons-legal-aid> accessed 20 February 2011.
15 Eduardo Reyes, 'The campaign against proposed legal aid cuts gains public' (Law Society Gazette, 10 February 2011) <http://www.lawgazette.co.uk/features/the-campaign-against-proposed-legal-aid-cuts-gains-public-support> accessed 20 February 2011.
16 See Roger Smith, 'Legal aid: models of organization' (JUSTICE 2002) 10.
17 Matthias Kilian, ‘Zugang zum Recht – Wege zur Gerechtigkeit. Entwicklungslinien und Erkenntnisgrundlagen’ (2008) 4 Österreichisches Anwaltsblatt 156.
18 Alan Paterson, 'Financing Legal Services: A Comparative Perspective' in Carey Miller and Paul R. Beaumont (eds), The Option of Litigating in Europe (UKNCCL 1993) 150.
19 ‘To none will we sell, to none deny or delay, right or justice’, see Magna Carta 1215 s 40.
20 Tamara Goriely, 'Gratuitous assistance to the “ill-dressed”: debating civil legal aid in England and Wales from 1914 to 1939' (2006) 13: 1 International Journal of the Legal Profession, 42-43.
21 Steve Hynes and Jon Robins, Legal Aid at 60 – bridging the Justice Gap (LAG 2009) 1-2.
22 Hynes and Robins (n 21) 8.
23 Howard Levenson, 'Legal Aid for Mitigation' (1977) 40: 5 MLR 523.
24 Hynes and Robins (n 21) 8.
25 Marie-Thérèse Groarke, 'Means Testing in Crown Court Trials' (2010) Criminal Law and Justice Weekly <http://www.criminallawandjustice.co.uk/index.php?/Analysis/means-testing-in-crown-court-trials.html> accessed 15 January 2011.
26 Department for Constitutional Affairs, A Fairer Deal for Legal Aid (Cm. 6591, 2005) para 53.
27 Hynes and Robins (n 21) 9.
28 Erhard Blankenburg, 'The Lawyers' Lobby and the Welfare State: The Political Economy of Legal Aid' in Francis Regan et al.(eds.), The Transformation of Legal Aid: Comparative and Historical Studies (OUP 1999) 114.
29 This has to be seen in the context of social legislation passed by the liberal government between 1906 and 1914, for example health insurance, unemployment benefit and pensions. See Richard I. Morgan, 'The Introduction of Civil Legal Aid in England and Wales, 1914-1949' (1994) 5: 1 Twentieth Century British History 38, 40.
30 Paterson (n 18) 151.
31 Hynes and Robins (n 21) 9.
32 Supreme Court of Judicature, 'Records of the Poor Persons Department 1913-1926, <http://www.nationalarchives.gov.uk/catalogue/displaycataloguedetails.asp?CATLN=3&CATID=8453> accessed 21 January 2011.
33 Goriely, 'Gratuitous assistance to the “ill-dressed”' (n 20) 46.
34 Divorce cases where both parties were members of the armed forces were eligible for legal aid under this scheme. See ibid.
35 In 1945 there were over 1,000 CABx. See Citizen Advice, 'CAB History' <http://www.citizensadvice.org.uk/index/aboutus/factsheets/ourhistory.htm> accessed 18 January 2011.
36 One of the reasons that voluntary advice services have grown in the UK (as opposed to Germany) is that the provision of legal advice to the public is not restricted to lawyers (apart from advice on immigration law). See Hynes and Robins (n 21) 23.
37 Morgan, 'The Introduction of Civil Legal Aid in England and Wales' (n 29) 61.
38 Beveridge, Sir William, Social Insurance and Allied Services (Cmd. 64041 1942).
39 John Flood, (n 13) number missing.
40 Hynes and Robbins (n 21) 20.
41 See Rushcliffe Committee, Report of the Committee on Legal Aid and Legal Advice in England and Wales (CMD 6641, 1945) in Hynes and Robbins (n 21) 20.
Levenson (n 23) 524.
43 “The maximum income figure for entitlement was set at £420 p.a. so as to include the overwhelming mass of skilled and nearly all unskilled workers as well as substantial sections of the lower middle class.“ See Morgan, 'The Introduction of Civil Legal Aid in England and Wales' (n 29) 67.
44 Tamara Goriely, 'Making the Welfare State Work: Changing Conceptions of Legal Remedies Within the British Welfare State' in Francis Regan et al.(eds.), The Transformation of Legal Aid: Comparative and Historical Studies (OUP 1999) 93.
45 Legal Services Commission, ‘Legal Aid through the Decades' (2009) 60 Focus Magazine <http://www.legalservices.gov.uk/docs/news/Focus_60_June_09.pdf> accessed 21 January 2011.
46 Morgan, 'The Introduction of Civil Legal Aid in England and Wales' (n 29) 74.
47 In 1969, 86 per cent of civil legal aid services in Birmingham were divorce-related. See Lee Bridges, 'Legal Services in Birmingham' (University of Birmingham, Institute of Judicial Administration 1975).
48 Hynes and Robins (n 21) 2.
49 As a part of President Johnson's 'war against poverty', these new institutions set up by salaried lawyers were considered a viable alternative to the current services provided by the state. See Peter Edelman, 'The War on Poverty and Subsequent Federal Programs: What Worked, What Didn’t Work, and Why? Lessons for Future Programs' (2006) 3 Georgetown Journal of Poverty Law and Policy.
50 Hynes and Robins (n 21) 22-26.
51 Goriely, 'Making the Welfare State Work' (n 44) 101. As of 2009, there were 50 law centres compared to 394 CABx in England. See: Hynes and Robins (n 21) 26.
52 Hynes and Robins (n 21) 27.
53 “The number of 'Green Form' bills for advice on housing, welfare benefits, debt, employment and immigration rose from around 63,000 bills in 1980/81 to 220,000 bills in 1990/91“ Goriely, 'Making the Welfare State Work' (n 44) 103. By 1986 the budget had induced a 50 per cent increase in costs over the past two years only. See Hynes and Robins (n 21) 27.
54 Phil Harris, An Introduction to Law (7th edn, CUP 2007) 437.
55 Hynes and Robins (n 21) 31.
56 Gary Slapper and David Kelly The English Legal System (9th edn, Routledge-Cavendish 2009) 565.
57 Harris (n 54) 438.
58 Slapper and Kelly (n 56) 572.
59 The provision of gratuitous assistance to the impecunious in need of legal help was regarded as a professional and honourable duty of lawyers. See Nicolo Trocker, 'Gutachten B' (DJT 51 1976) B7-B13.
60 For example, the 1817 code of procedure for the Hessian Rhine Province included the right for poor people to have access to proceedings under a poor man's law if they did not have sufficient means to pay for legal expenses. See ibid.
61 Trocker (n 59) B8-9.
62 Matthias Kilian, 'Civil Legal Aid and Access to Justice in Germany' (International Legal Aid Group Conference, Melbourne, 2001) <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Melbourne_2001/National_Reports/Legal_Aid_and_Access_to_Justice_in_Germany.pdf> accessed 1 February 2011.
63 Blankenburg (n 28) 114.
64 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
65 Blankenburg (n 28) 116.
66 For example the illness insurance law 1883, the accident insurance law 1884 as well as insurance for handicapped and retired people. See Henry E. Sigerist, 'From Bismarck to Beveridge: Developments and Trends in Social Security Legislation' (1999) 20:4 Journal of Public Health Policy, 474.
67 Blankenburg (n 28) 116.
69 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
70 Up until today, in cases other than criminal German lawyers are mostly remunerated according to fee scales set by statute and based on the value of the claim. Usually only reduced fees are available for legal aid work which have been specified in a separate scale since 1925. See Trocker (n 59) B21.
71 ibid. B17-B18. Today, the LEI market is a major factor in financing legal proceedings and thus one of the mainstays of access to justice in Germany. See ch. 4.1.2.
72 § 140 RStPO 1877.
73 Michael Bohlander, 'Legal advice in criminal proceedings in the Federal Republic of Germany' (1992) 3 Criminal Law Forum 401.
74 Norman Inoue, Die Pflichtverteidigung im Ermittlungsverfahren (Kovač 2004) 25.
75 Marius Hahn, Die Verdachtskündigung unter Berücksichtigung einer gesetzlichen Regelung (Kovač 2004) 62.
76 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
77 Blankenburg (n 28) 118.
78 A contemporary report on civil legal aid in Germany sums up: “The most noticeable innovations of the Nazi regime have been: (a) the exclusion of the Jews; (b) the thoroughgoing organization of the work; (c) making lawyers serve without pay; (d) self advertisement” See Robert E. Stone, 'Certain European Legal Aid Offices' (1936) 25:1 California Law Review 52.
79 Hahn (n 75) 63.
80 Benedikt Kortz, Die Notwendigkeit der Verteidigung im Strafverfahren (Kovač 2009) 28-29.
81 BGB1 I, 455.
82 Art. 20 § 1 GG; Art. 3 § 1 GG; BVerfG, BVerfGE 9, 256, 258, 14 April 1959; BVerfG, BVerfGE 35, 348, 355, 3 July 1973.
83 Inoue (n 74) 28.
84 For example under the Strafprozessänderungsgesetz, see BGBl I 1964, 1067.
85 Erstes Gesetz zur Ergänzung des Strafverfahrensreformgesetzes, see BGBl I 1974, 3686.
86 Opferschutzgesetz 1986, see BGBl I, 2496.
87 In 2008 the Rechtsdienstleistungsgesetz replaced the Rechtsberatungsgesetz which brought about changes to the provision of out-of-court legal advice services by non-lawyers. See ch. 3.2.
88 See § 6 Rechtsdienstleistungsgesetz (RDG).
89 § 4a. Rechtsanwaltsvergütungsgesetz (RVG). See ch. 4.1.2
90 „The Deutsche Juristentag is the traditional annual legal conference of German academics and legal professionals which has a considerable influence on policy issues in Germany“ Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
91 Literally, Legal Advice Act. See Gesetz über die Rechtsberatung und Vertretung für Bürger mit geringem Einkommen (BGBl I 1980, 689).
92 The rules governing legal aid for court proceedings. See BGBI I 1980, 677.
93 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
94 Matthias Kilian, ‘Improving access to justice in Germany through the use of new providers – The 2005 white paper of a law on the provision of legal services (Rechtsdienstleistungsgesetz – RDG-E)’ (ILAG Conference, Killarney, 2005) <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Killarney_2005/Conference_Papers/Matthias_Kilian_-_Improving_access_to_justice_in_Germany_through_the_use_of_new_providers.pdf> accessed 15 February 2011. However, since the enactment of the Rechtsdienstleistungsgesetz in July 2008, the scope of people entitled to provide some form of legal advice services not relating to proceedings has been widened. See ch. 3.2.
95 Matthias Kilian, ‘German Legal Aid by the Scruff of its neck – or just in a bad quarter of an hour?’ (ILAG Conference, Killarney, 2005) <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Killarney_2005/National_Report/4.6_Germany-Kilian.pdf> accessed 15 February 2011.
96 Council of Europe, ‘European Convention on Human Rights’ (Council of Europe Treaty Series No. 5, 2010) < http://book.coe.int/sysmodules/RBS_fichier/admin/download.php?fileid=3502> accessed 6 November 2011.
97 BGBI 2009 I ,2274. See also ch. 4.1.2.
98 Access to Justice Act 1999 (AJA 1999).
99 For example, Community Legal Service (Financial) Regulations 2000; Community Legal Service Funding Order 2007; The Funding Code.
100 AJA 1999,s 3.
101 The Funding Code, s 1(1). See also Slapper and Kelly (n 55) 569-570.
102 Slapper and Kelly (n 56) 572.
103 See AJA 1999 sch 2.
104 Supreme Court, Court of Appeal and High Court; County court; Employment Appeal Tribunal; Mental Health Review Tribunal; Asylum and Immigration Tribunal; before an Immigration Adjudicator and in certain specified proceedings in the Crown Court or magistrates’ court.
105 AJA 1999, s 8.
106 Slapper and Kelly (n 56) 576 See also The Funding Code , s5.
107 Civil Procedure Rules (CPR) 27.1.
108 Matthias Kilian, ‘To pay or not to pay – is that the question? The impact of funding on the perception of legal services’ (ILAG Conference, Wellington, 2009) 5 <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Wellington_2009/Conference_Papers/To_pay_or_not_to_pay_-_is_that_the_question_MK.pdf> accessed 20 February 2011.
109 The Funding Code, ss 6—13.
110 ibid. s 2(3).
111 ibid. s 5(7)(2).
112 ibid. s 5(7)(3).
113 ibid. s 11.
114 The Community Legal Service (Financial) Regulations 2000 as amended, SI 2000/516.
115 ibid. reg 3.
116 Slapper and Kelly (n 56) 573.
117 As of 2010, the gross monthly income cap was at £2,657 and the capital limit was at £8,000. See LSC, ‘A Step-By-Step Guide to Legal Aid’ (2010) 5 <http://www.legalservices.gov.uk/LSC_StepByStep_leaflet_2010.pdf> accessed 20 February 2011.
118 This applies to the following services: Legal Help; Help at Court, Legal Representation in immigration and asylum matters; Family Help (Lower) and Family Mediation. See CLS Financial Regulations 2000 (n 113) reg 38.
119 For Legal Representation and Family Help (Higher) clients with disposable capital over £3,000 must pay a lump sum while clients with disposable income above £315 have to pay a monthly contribution. See
120 CLS Financial Regulations 2000 (n 113) regs 42-53.
121 ibid. reg 4.
122 See AJA 1999, ss 13(2) and 14(2).
123 Michael Breyer, Kostenorientierte Steuerung des Zivilprozesses ( Mohr Siebeck 2006) 199.
124 AJA 1999, s 12(2).
125 ibid. 13(1).
126 Slapper and Kelly (n 56) 582. See AJA 1999 ss 13 and 14.
127 The Public Defender Service (PDS) is a pilot project of the LSC and constitutes the first salaried criminal lawyer service in England. Section 13(2)(f) of the AJA 1999 governs the respective powers of the LSC to run this scheme. Currently there are four PDS offices in England & Wales all staffed with solicitors who are available 24 hours every day.
128 Further details are outlined in Part B of the General Criminal Contract 2008.
129 The Criminal Defence Service (General) (No. 2) Regulations 2001, SI 2001/1437.
130 ibid. reg 5.
131 The Criminal Defence Service Act 2006 s 5(5).
132 AJA 1999, s 14.
“In deciding what the interests of justice consist of in relation
to any individual, the
134 Ibid. ss 1 and 2
135 Ministry of Justice (MOJ) ‘Post Implementation Review: Means testing in the magistrates’ court’ (2007) 5-6 < http://www.legalservices.gov.uk/docs/cds_main/PIR_151007.pdf> accessed 1 March 2011.
136 See The Criminal Defence Service (Contribution Orders) Regulations, SI 2009/3328.
137 See ibid. reg 9. “Defendants who […] have a household annual disposable income of more than £3,398 will have to pay up to six, monthly contributions equal to 90 per cent of their disposable income while the case is under way. Defendants receive their money back with two per cent interest if found not guilty. However, if convicted with outstanding defence costs and they have more than £30,000 of capital assets (namely savings, equity in property, shares or premium bonds), defendants will face further payment for the remaining defence costs. This includes all fees to litigators, advocates and expert witnesses. Total contributions are subject to a cap based upon the class of offence and the defendant’s level of income but could be as much as £185,806.” Marie-Therese Groarke, (n 25).
138 See Article 6 ECHR. The specific provision on legal aid can be found in Article 6(3)(c) ECHR. Council of Europe, ‘European Convention on Human Rights’ (n 96).
139 This includes the right to a fair hearing , the right to a public hearing , the right to a hearing before an independent and impartial tribunal, and the right to a hearing within a reasonable time. Furthermore it gives the right to everyone charged with a criminal offence “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require” See Human Rights Act 1998, s 6.
140 “The overriding purpose of the new means test is to identify if a defendant can genuinely afford to pay defence costs, and to grant legal aid only to those who cannot. This is achieved by weighting a defendant’s gross annual income to reflect their family and household circumstances.” See MOJ ‘Post Implementation Review: Means testing in the magistrates’ n(135) 6.
141 P, C and S v UK  32 EHRR 3
142 For example, standard fees apply to actions against the police, clinical negligence, community care, consumer, debt, education, employment, housing, personal injury, public law, welfare benefits. See http://www.legalservices.gov.uk/docs/civil_contracting/Standard_Fixed_Fees.pdf
143 For example Police Station Fixed Fees. See http://www.legalservices.gov.uk/docs/criminal_contracting/PaymentAnnexfinal.pdf
144 Payment rates are included in annexes to the Unified Contract (Civil) as well as the General Criminal Contract. See LSC ‘Unified Contract Part B: Payment Annex 2008’ <http://www.legalservices.gov.uk/docs/forms/080701PaymentAnnex2008.pdf> accessed 25 February 2011; and LSC ‘General Criminal Contract 2008 Revised Annex’ <http://www.legalservices.gov.uk/docs/criminal_contracting/RevisedAnnextotheGCC(Jan08)Specification_(176kb).pdf> accessed 25 February 2011.
145 See AJA 1999, ss 27-31; CPR 43-48; Access to Justice (Membership Organisation) Regulations 2005, SI 2005/2306.
146 AJA 1999, s 29.
147 In criminal cases only legal advice is available for out-of-court legal aid. See §2(2) BerHG.
148 Howard D. Fisher, The German Legal System and Legal Language (4th ed. Routledge-Cavendish 2009) 305-308.
149 The Zivilprozessordnung (ZPO) and the Strafprozessordnung (StPO) for the civil and the criminal branch of the courts of general jurisdiction; the Verwaltungsgerichtsordnung (VwGO) for administrative courts; the Arbeitsgerichtsgesetz (ArbGG) for the labour courts; the Sozialgerichtsgesetz (SGG) for the social security courts and the Finanzgerichtsordnung (FGO) for the tax courts.
150 § 166 VwGO; § 11a III ArbGG; § 73a SGG; § 142 I FGO.
151 Armin Schoreit and Ingo Michael Groß, Beratungshilfe, Prozesskostenhilfe – BerH / PKH Kommentar (9th edn. C.F. Müller 2009) 286.
152 C.M.C. van Zeeland and J.M. Barendrecht, Legal Aid Systems Compared (Tilburg University 2003) 2.
153 The advice given out by these institutions is usually considered to be of general nature but can, with regard to their respective remit, involve some form of legal advice. A classic example would be trade unions providing advice on labour law issues. See Schoreit and Groß (n 151) 42 and 79-89.
154 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
155 See Schoreit and Groß (n 151) 284.
156 §§ 114 and 116 ZPO.
157 § 114 ZPO.
158 For example taxes, social security contributions, housing costs etc. For further details, §115 (1 ) ZPO refers to §§28 and 82 of the German Social Security Code (Sozialgesetzbuch) as well as § 1610a of the German Civil Code (Bürgerliches Gesetzbuch).
159 §115 (2) ZPO.
160 „The rationale of this exemption is that the costs for administration are much higher than the likely benefit for the indigent. Consequently, an exclusion of very small claims (which under the German cost regime result in low litigation costs) from legal aid is justified.” See Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
161 § 140 ZPO; § 1 BerHG.
162 In order to determine whether an action was brought frivolously the courts consider if the reasonable person ineligible for legal aid would have pursued the respective action in a similar fashion. See Josef Dörndorfer, ‘Prozesskosten- und Beratungshilfe für Anfänger’ (5th ed. München C.H. Beck 2009) 5.
163 Breyer (n 123) 196.
164 §91 ZPO
165 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
166 §124 ZPO.
167 Services available cover matters of civil law (excluding labour law), administrative law constitutional law and social law. For criminal law cases only legal advice is funded. See § 2 (2) BerHG.
168 ibid. § 3 (2).
169 ibid. § 1 (2).
170 Schoreit and Groß (n 151) 40.
171 § 1 (3) BerHG.
172 § 12 BerHG
173 § 2 (2) BerHG
174 Bohlander (n 73) 407.
175 For the relevant provisions see §§ 140 - 145a, 364a and 364b StPO.
176 Bohlander (n 73) 409-410. See § 140 StPO.
177 § 140 (2) StPO.
178 § 142 StPO.
179 X v Federal Republic of Germany, App. No. 9365/81, 28 Eur. Comm’n H.R. Dec & Rep. 229 (1982).
180 For the domestic law in Germany see BGBl II 2010, 1198.
181 Bohlander (n 73) 412.
182 §§ 464-473 StPO.
183 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62).
184 Concerning legal aid, the relevant provisions are § 44 for Beratungshilfe and § 45 for Prozesskostenhilfe as well as Notwendige Verteidigung.
185 Since 2008 even conditional fees are permitted if it can be shown that a potential client would otherwise be prevented from exercising his rights because of his economic situation. See § 4a RVG.
186 § 49b (1) Bundesrechtsanwaltsordnung (BRAO).
187 For an overview see Bundesrechtsanwaltskammer (BRAK), ‘Grundlagen Anwaltsgebühren’ <http://www.brak.de/seiten/pdf/RVG/GrundlagenAnwGeb.kurz.pdf> accessed 22 February 2011.
188 No. 2501 VV RVG.
189 § 8 BerHG.
190 § 49 RVG.
191 See pt. 4 VV RVG.
192 § 51 RVG.
193 BVerfG, 1 BvR 2576/04 vom 12.12.2006, Absatz-Nr. (1 - 115), http://www.bverfg.de/entscheidungen/rs20061212_1bvr257604.html
194 Carolyn Regan, ‘National Report: England and Wales’ (International Legal Aid Group Conference 2009 Wellington, NZ) 10 <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Wellington_2009/National_Reports/England_-_CR_.pdf> accessed 20 February 2011.
195 John Flood and Avis Whyte, ‘What’s wrong with legal aid? Lessons from outside the UK’ (2006) 25 Civil Justice Quarterly 86.
196 LSC, ‘Annual Report and Accounts 2009/10’ (2010) 74 <http://www.legalservices.gov.uk/docs/about_us_main/LSC_AnnualReport_2009-10(final_web).pdf> accessed 1 March 2011.
197 See ch. 4.1.2 for the problematic issue of obtaining data on legal aid in Germany.
198 LSC ‘Annual Report 2009/2010’ (n 196) 6.
199 John Flood, (n 13).
200 Steve Hynes, ‘Legal Aid in the Recession’ (Legal Action Group 2009) 7 <http://www.lag.org.uk/files/92916/FileName/AprilLA_06_07.pdf> accessed 17 February 2011.
201 See Clare Dyer, ‘Legal aid 'crisis' as poor pay deters trainees’ The Guardian (London, 22 March 2004) <http://www.guardian.co.uk/uk/2004/mar/22/ukcrime.prisonsandprobation> and Hugh Levinson, ‘Legal aid crisis “in some areas”’(BBC News, 24 November 2005) <http://news.bbc.co.uk/2/hi/uk_news/4468440.stm> accessed 3 March 2011.
202 LSC ‘Annual Report 2009/2010’ (n 196) 6-7.
203 LSC, ‘Understanding publicly funded Family Mediation’ (2009) 3. <http://www.legalservices.gov.uk/docs/fains_and_mediation/MediationbriefingforjudicaryJun09.pdf > accessed 28 February 2011.
204 Roger Bowles and Amanda Perry, ‘International Comparison of publicly funded legal services and justice systems’ (Ministry of Justice Research Series 14/09, 2009) 30.
205 Hynes and Robins (n 21) 147.
206 Bowles and Perry (n 203) 10.
207 LSC ‘Annual Report 2009/2010’ (n 196) 7.
208 Slapper and Kelly (n 56) 586. See also Citizen Advice, ‘About Us’ (2011) <http://www.citizensadvice.org.uk/index/aboutus.htm > accessed 5 March 2011.
209 Citizen Advice, ‘Need for civil legal aid has soared during the recession’ (Press Release 10 July 2009) <http://www.citizensadvice.org.uk/press_20090710?utm_medium=RSS-pressoffice> accessed 5 March 2011.
210 See Peter Walker, ‘Recession hit firms ‘use dodges to shed staff without redundancy pay’ The Guardian, (London 16 February 2009) <http://www.guardian.co.uk/money/2009/feb/16/recession-unemployment-redundancy-pay> accessed 05 March 2011.
211 LSC, ‘Annual Report and Accounts 2008/2009’(2009) 8-9 <http://www.legalservices.gov.uk/docs/archive/LSC_AnnualReport_2008-09.pdf> last accessed 6 March 2011.
212 See ch. 4.3.1
213 Flood and Whyte (n 195) 95.
214 Hynes and Robins (n 21) 147.
215 LSC, ‘Annual Report 2008/2009’ (n 210) 5.
216 LSC, ‘Annual Report 2009/2010’ (n 196) 9-10.
217 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 51.
218 Statistisches Bundesamt, ‘Fachserie 10, Reihe 2.1, 2009’ (2010) <http://www.destatis.de/jetspeed/portal/cms/Sites/destatis/Internet/DE/Content/Publikationen/Fachveroeffentlichungen/Rechtspflege/GerichtePersonal/Zivilgerichte2100210097004,property=file.pdf> accessed 20 October 2011.
219 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 50.
220 The main reasons for this being that, according to the study, the number is restricted to cases at the courts of general jurisdiction and explicitly excludes criminal legal aid and out-of-court advice and assistance.
221 Van Zeeland and Barendrecht (n 152) 21.
222 Bremen and Hamburg are not included here as the two states run public advice institutions for which expenditure is different and thus not directly comparable to the other Länder.
223 Bundesamt für Justiz, ‘Beratungshilfestatistik 1981 bis 2010’ (2011) 1 <http://www.bundesjustizamt.de/DE/Themen/Buergerdienste/Justizstatistik/Beratungshilfe/Beratungshilfestatistik,templateId=raw,property=publicationFile.pdf/Beratungshilfestatistik.pdf > accessed 4 October 2011.
224 CEPEJ, ‘European Judicial Systems 2002’ (Council of Europe 2004) 24 <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1150243&SecMode=1&DocId=1009444&Usage=2> accessed 1 March 2011. CEPEJ, ‘European Judicial Systems 2008’ (n 3).
225 Van Zeeland and Barendrecht (n 152) 33.
226 Gerhard Dannemann, ‘Access to Justice: an Anglo-German Comparison’ (1996) 2 European Public Law 276 <http://www.iuscomp.org/gla/literature/access.htm> accessed 5 December 2011
227 Kilian, 'Civil Legal Aid and Access to Justice in Germany' (n 62.
228 “Underprivileged clients often are reluctant to consult a lawyer. Experience shows that they are much more at ease when they contact a familiar organisation already well-known to them or others” Kilian, ‘Improving Access to Justice’ (n 94) 8-9. This corresponds with the exemplary observation of rising client numbers in Berlin’s debt advice centres (Schuldnerberatungsstelle) See Schuldnerberatung Berlin, ‘Armut und Überschuldung’ (2008) <http://www.schuldnerberatung-berlin.de/presse08.pdf> accessed 1 March 2011.
229 Kilian, ‘To pay or not to pay’ (n 108) 6.
230 Kilian 'Civil Legal Aid and Access to Justice in Germany' (n 62).
231 Matthias Kilian and Francis Regan, ‘Legal expenses insurance and legal aid - two sides of the same coin? The experience from Germany and Sweden’ (2004) 11 International Journal of the Legal Profession 238-241.
232 See Kilian 'Civil Legal Aid and Access to Justice in Germany' (n 62); Bowles and Perry (n 203).
233 CEPEJ, ‘European judicial systems Edition 2010 (data 2008): Efficiency and quality of justice’ 7 (Council of Europe 2010) <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694098&SecMode=1&DocId=1653000&Usage=2> accessed 3 March 2011.
234 LSC ´Annual Report 2009/2010‘ (n 195) 5; John Flood (n 13).
235 Justice For All, ‘Legal Aid Reform – Justice For All Briefing’ (2010) <http://www.justice-for-all.org.uk/dyn/1291996252143/j4a_Legal-Aid-reform.pdf> accessed 10 February 2011.
236 Bowles and Perry (n 202); Richard Moorhead, ‘Legal Aid – System Failure or Broken Law?’ (2010) 3 New Law Journal <http://www.newlawjournal.co.uk/nlj/content/system-failure-or-broken-law> accessed 20 February 2011.
237 Bowles and Perry (n 203) 32.
238 CEPEJ, ‘European Judicial Systems2008’ (n 3) 51.
239 LSC, ‘Annual Report 2009/2010’ (n 196) 5.
240 Moorhead (n 235); Bowles and Perry (n 203) 23, 34.
241 Bowles and Perry (n 203) 36.
242 John Flood, (n 13).
243 Bowles and Perry (n 203) 30.
244 Matthias Kilian, ‘German legal aid by the scruff of its neck - or just in a bad quarter of an hour? - The development of German legal aid since the turn of the century’ (ILAG Conference , Killarney, 2005) 3 <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Killarney_2005/National_Report/4.6_Germany-Kilian.pdf> accessed 15 February 2011.
245 Van Zeeland and Barendrecht (n 152) 29.
247 Kilian, ‘German legal aid by the scruff of its neck’ (n 243) 6.
248 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 20.
249 Kilian, ‘Civil Legal Aid and Access to Justice in Germany' (n 62).
250 Kilian, ‘German legal aid by the scruff of its neck’ (n 243) 6.
251 CEPEJ, ‘European Judicial Systems: Edition 2006 (2004 data)’ (Council of Europe 2006) 46 <http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2006/CEPEJ_2006_eng.pdf> accessed 10 March 2011; CEPEJ, ‘European Judicial Systems 2008’ (n 3) 50.
252 Bundesamt für Justiz (n 222) 1.
253 Kilian, ‘Civil Legal Aid and Access to Justice in Germany' (n 62).
254 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 21. The average GBP to EUR exchange rate of 2006 was approximately 1.47€ compared to 1.12€ in 2009 which explains the differences in denomination between the respective years.
255 Bowles and Perry (n 203) 23, 54.
256 Kilian and Regan (n 230) 238; Statista, ‘Daten & Fakten zur Rechtsschutzversicherung’ (2010) <http://de.statista.com/statistik/faktenbuch/4/a/versicherungen/rechtsschutzversicherung/> accessed 15 March 2011.
257 Based on the number of 153,251 registered lawyers in 2009. See BRAK, ‘Entwicklung der Zahl zugelassener Rechtsanwälte von 1950 bis 2010’ (2010) <http://www.brak.de/seiten/pdf/Statistiken/2010/EntwicklungRAe.pdf> accessed 15 March 2011.
258 Christoph Hommerich , Matthias Kilian and René Dreske (eds.), Statistisches Jahrbuch der Anwaltschaft 2007 / 2008 (Deutscher Anwaltverlag Gm 2007) 144-146.
259 Kilian, ‘German legal aid by the scruff of its neck’ (n 243) 2.
260 Bowles and Perry (n 203) 36.
261 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 20-21.
262 Rachel Rothwell, ‘Neuberger warns against mediation and defends legal aid and Jackson’ (Law Society Gazette online, 4 March 2011) <http://www.lawgazette.co.uk/news/neuberger-warns-against-mediation-and-defends-legal-aid-and-jackson> accessed 10 March 2011.
263 Clive Coleman, ‘Legal aid reforms are unveiled by Kenneth Clarke’(BBC News, 15 November 2010) <http://www.bbc.co.uk/news/uk-11741289> accessed 25 February 2011.
264 MoJ, Proposals for the Reform of Legal Aid in England and Wales (CP No 12, 2010) 5 <http://www.justice.gov.uk/consultations/docs/legal-aid-reform-consultation.pdf> accessed 25 February 2011.
265 James Dean, ‘Civil legal aid facing ‘devastation’ after £154m cut’ (Law Society Gazette online, 18 November 2010) <http://www.lawgazette.co.uk/news/civil-legal-aid-facing-devastation-after-154m-cut> accessed 25 February 2011.
266 Legal Week, ‘MoJ details legal aid cuts and plans for Jackson reforms: market reaction‘ (Legal Week online,15 November 2010) <http://www.legalweek.com/legal-week/news/1898071/moj-details-legal-aid-cuts-jackson-reforms-win-ministerial-backing> accessed 26 February 2011.
267 Polly Curtis, ‘Legal aid cuts will hit women the hardest, says justice department’ (The Guardian online, 26 December 2010) <http://www.guardian.co.uk/law/2010/dec/26/legal-aid-cuts-hit-women-justice> accessed 26 February 2011.
268 Dean (n 264).
269 See LSC, ‘Annual Report 2008/2009’ (n 210) 9.
270 BBC News, ‘Economy tracker’ (25 February 2011) <http://www.bbc.co.uk/news/10613201> accessed 2 March 2011.
271 Afua Hirsch, ‘Legal aid cuts would remove free advice for thousands of people’ (The Guardian online, 15 November 2010) <http://www.guardian.co.uk/law/2010/nov/15/legal-aid-cuts-free-advice> accessed 2 March 2011.
272 Coleman (n 262).
273 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report (Norwich: TSO Blackwell 2010) <http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/jackson-final-report-140110.pdf> accessed 2 March 2011.
274 Judiciary of England and Wales, ‘Jackson Review calls for a package of reforms to rein in the costs of civil justice’ (Judicial Communications Office news release 14 January 2010) <http://www.judiciary.gov.uk/media/media-releases/2010/media-release0210 > accessed 2 March 2011.
275 Legal Week (n 265).
276 Lord Justice Jackson (n 272)77.
277 Legal Action Group, ‘Legal aid cuts: misleading statistics from the MoJ’ (The Guardian online, 18 March 2011) < http://www.guardian.co.uk/law/2011/mar/18/legal-aid-cuts-impact-moj> accessed 19 March 2011.
278 Ministry of Justice, ‘Reforming Civil Litigation Funding and Costs in England and Wales – Implementation of Lord Justice Jackson’s Recommendations. The Government Response’ (2011) 20 <http://www.justice.gov.uk/downloads/consultations/jackson-report-government-response.pdf> accessed 8 December 2011.
279 Ibid. 17
280 Ibid. 15
281 Ibid. 3
282 Deutscher Bundesrat, ‘Entwurf eines Gesetzes zur Begrenzung der Aufwendungen für die Prozesskostenhilfe (Prozesskostenhilfebegrenzungsgesetz – PKHBegrenzG)’ Drucksache 17/1216 2010 <http://dipbt.bundestag.de/dip21/btd/16/019/1601994.pdf> accessed 16 March 2011.
283 ibid. 1, 18-19.
284 ibid. 15.
285 See ch. 3.1.
286 Jens Gnisa, ‘Stellungnahme des Deutschen Richterbundes zum Entwurf eines Gesetzes zur Begrenzung der Aufwendungen für die Prozesskostenhilfe (Prozesskostenhilfebegrenzungsgesetz - PKHBegrenzG ) - BT-Drs. 17/1216 ‘ (Deutscher Richterbund 2010) <http://www.drb.de/cms/index.php?id=645> accessed 12 March 2011.
287 Deutscher Budesrat, ‘Entwurf eines Gesetzes zur Begrenzung der Aufwendungen für die Prozesskostenhilfe (Prozesskostenhilfebegrenzungsgesetz – PKHBegrenzG)’ Drucksache 17/1216 Stellungnahme der Bundesregierung <http://dip21.bundestag.de/dip21/btd/17/012/1701216.pdf> accessed 12 March 2011.
289 This assumption was based on BerH data from the period between 2000 and 2007 whereas only ten Länder provided expenditure information for 2007. See Deutscher Bundesrat, ‘Entwurf eines Gesetzes zur Änderung des Beratungshilferechts’ Drucksache 648/08 9-10 <http://www.bundesrat.de/cln_099/SharedDocs/Drucksachen/2008/0601-700/648-08,templateId=raw,property=publicationFile.pdf/648-08.pdf> accessed 13 March 2011.
291 Van Zeeland and Barendrecht (n 152) 21.
292Citizen Advice Bureau, ‘Alternative dispute resolution (ADR)’ (Fact Sheet April 2010) <http://www.adviceguide.org.uk/index/c_alternative_dispute_resolution.pdf> accessed 13 March 2011.
293 MoJ, ‘Family mediation - an alternative to courts’ (2011) <http://www.justice.gov.uk/news/announcement040111a.htm> > accessed 13 March 2011..
294 Katie O'Callaghan, ‘Divorce: Mediation should help married couples split up’ (BBC News Business, 2 March 2011) <http://www.bbc.co.uk/news/business-12596460> accessed 14 March 2011.
295 Neil Rose, ‘Jaw-jaw not war-war: why more may try to settle disputes outside court’ (The Guardian online , 11 January 2011) <http://www.guardian.co.uk/law/2011/jan/11/alternative-dispute-resolution-new-potential> accessed 14 March 2011.
296 Rothwell (n 261).
297 Schoreit and Groß (n 151) 55. For a judgement on the refusal of PKH for out-of-court mediation see Oberlandesgericht Dresden, 20. Zivilsenat - Familiensenat - Beschl. v. 09.10.2006, 20 WF 739/06 <http://www.justiz.sachsen.de/elvis/documents/20WF739.06.pdf> accessed 14 March 2011.
298 See Grit Andersch, ‘Häufig gestellte Fragen von Usern’ (Rechtsanwaltsgebühren.de ) <http://www.rechtsanwaltsgebuehren.de/Infos/Lesermeinung.html#Medi> accessed 14 March 2011.
299 Henry Bellingham, ‘Worth fighting for‘ in: Closing the Justice Gap – new thinking on an old problem’ (2010) Solicitors Journal 11.
300 Hynes and Robins (n 21) 103.
301 Jon Robins, ‘Legal insurance: will Britain buy it?’ (The Guardian online, 28 May 2010) <http://www.guardian.co.uk/law/2010/may/28/legal-insurance-uk-germany> accessed 10 March 2011.
302 Ministry of Justice, ‘The Market for ‘BTE’ legal expenses insurance’, July 2007.
303 YouGov Survey in Jon Robins, ‘Shopping around: What consumers want from the new legal services market’ (2010) 16< http://www.jures.co.uk/whitepapers/5Poe5DkN_jures-final-wholereportforsite.pdf > accessed 10 March 2011.
304 Jon Robins (n 301).
305 Christoph Hommerich, ‘Ein Jahr Erfolgshonorare – Empirische Ergebnisse zu einer erzwungenen Reform’ (AnwBl 7 / 2009) 541-543.
306 Matthias Kilian, ‘Zugang zum Recht’ (n 17).
307 The Judge, ‘Conditional fee agreements after Jackson: consultation and next steps’ (2010) <http://www.thejudge.co.uk/index.php/press/article/conditional-fee-agreements-after-jackson-consultation-and-next-steps> accessed 14 March 2011.
308 Slapper and Kelly (n 56) 591.
309 Ibid. 592
310 Richard Moorhead, Paul Fenn and Neil Rickman, ‘Scoping project on no win no fee agreements in England and Wales’ (Ministry of Justice Research Series 2009) 12 <http://www.justice.gov.uk/research-report-no-win-no-fee.pdf> accessed 14 March 2011.
311 Hommerich (n 305) 543.
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