Legal aid possible in civil cases

Press, 22 August 1978, Page 13

Legal aid possible in civil cases

. A person who takes or defends a civil case in the courts. may be unable to afford the cost of it, even allowing for the fact that if the court decides in his favour he will probably be awarded costs against the unsuccessful party. This is because, in a claim for money, the courts will normally only award costs according to a set scale — which is seldom. if ever, .enough to cover the legal fees; and in cases other than money claims the practice again is to award a fairly small amount. As a result a successful party may still be out of pocket after the case and an unsuccessful party will have to pay not only his own legal costs, but also part of the legal costs of the successful party. The situation may be even worse for the successful party if the costs awarded cannot be extracted from the unsuccessful party. Because of this situation some people were, in the past, unable to bring or defend worth-while court cases. The Legal Aid Act, 1969, largely remedied this problem by paying the legal costs of a person who qualified for legal aid.

To qualify for aid under this act you must have a reasonably sound case, and the costs of fighting it must not be out of proportion to what is at stake.

Your eligibility basically depends on your "disposable” income and capital. If you are married and not separated your wife’s or husband’s resources will also be included, or if you are under the age of 16 your parents’ resources may be included.

• Disposable income is what you have deft over from your total annual income after deducting income tax and personal allowances for yourself and your dependants. The allowances are $3031 for you; $1432 for your husband, wife or parents, if their resources are included; $156 for the first child or other dependent relative; and $65 for each additional child or dependent relative.

In the case of a single, separated or widowed person the allowances for children or dependent relatives are $1484 for the first, $156 for the second, and $65 for each additional child or dependent relative.

“Disposable capital” refers to the value of assets, less debts, but a person’s home, private. motor vehicle, furniture and effects are excluded. Liabilities which may have to be met within the succeeding six months and an allowance of $5OO for a dependent wife, child, or other dependent relative, are also deducted and the balance is the “disposable” capital. The general rule is that a person with a disposable income less than $2OOO and disposable capital less than $2OOO is eligible for legal aid. A person with no disposable income or capital will only have to pay $l5 towards the cost of providing the legal aid, but a person with disposable income and/or capital, will have to contribute towards legal aid. He will have to pay half of his disposable income

up to $lOOO, two-thirds of his disposable income over $lOOO and less than $2OOO, and all his disposable income over $2OOO. He will also have to pay two-thirds of his disposable capital up to $2OOO and all his disposable capital over $2OOO. However, the legal aid authorities can waive part or all of the required contributions, if necessary, to avoid substantial hardship, and can permit the contribution to be paid by instalments over a period, or in a single payment. Thus a person is often eligible for legal aid but it is not worth taking up legal aid because the contribution would be more than the actual legal costs. However, it may be worth taking up legal aid even if you would have to pay just as much as the expected legal costs because the contribution may be paid by instalments over an extended

period, rather like time payment, but without having to pay interest, and also it may be a form of insurance against any unexpected additional costs. The rather rigid rules about contribution may work unfairly, and one might have on one side of a case a retired person with his own home, car and furniture with no mortgage, living comfortably on superannuation, who has qualified for legal aid and paid only the $l5 minimum contribution, and on the other side a young man working a lot of overtime to support his wife and children and saying up for a deposit on a house, who did not qualify for legal aid or who would have had to pay most of his savings as a contribution to legal aid. Apart from your contribution, legal aid will meet solicitor’s costs and disbursements and court fees, although a maximum sum may be set. Usually if you are granted legal aid your solicitor gets only 85 per cent of the normal fee. But if a maximum sum has been laid down and the fee actually payable to the solicitor exceeds this, you may have to pay the difference. The granting of legal aid to one party does not really affect the rights of other parties involved. The act covers legal aid for a wide range of civil proceedings in Magistrate’s, Supreme, Compensation, Children’s and Maori Land courts and certain other tribunals. It also covers appeals against lower courts, decisions. Legal aid is available for many domestic disputes (in fact most applications are for domestic disputes) but does not cover divorce proceedings nor criminal cases (provision is made for the latter in the Offender’s Legal Aid Act, 1954). Legal aid covers only court proceedings, and you

cannot get legal aid to cover legal advice or a dispute which can be settled without going to court. If you wish to apply for legal ,aid, ask any solicitor or a Supreme Court Office. You will need to fill in any application form setting out your case and giving the name of the solicitor you would like to act for you (although he may pass your case to to another solicitor), a statement of your financial position anti an authority so that any person or organisation may give information to the District Legal Aid Committee about your financial affairs. When applying for legal aid you must also deposit $l5 unless you are exempt or are applying for an exemption. In an emergency (for example, if you are threatened with immediate eviction from your house) any member of the District Legal Aid Committee may grant a legal aid certificate. You then have to complete all normal formalities within 21 days. When the amount involved in a law suit will be less than $lOO the procedures are very much simplified. A District Legal Aid Committee decides whether or not aid should be approved and, if so, how much you should pay towards the costs. You can appeal to the Legal Aid Appeal Authority if the District Committee refuses to approve aid; or if it fixed a max’.mum contribution to your costs which you think is too low; or if you think you are being asked to pay too much. You have 28 days in which to accept the offer or to appeal. There are 19 District Legal Aid Committees — mostly in towns that have Supreme Court sittings. Proceedings before district committees and the appeal authority are confidential. A Legal Aid Board has over-all control of the scheme. If you have been granted legal aid, and win, the Crown has first claim against any costs awarded to you and, in some cases, against money or property recovered in the proceedings; so that you may be required to make a further contribution towards the expenses. If you have been granted legal aid, and lose, the costs awarded against you will not be more than you can reasonably pay. Approved aid may be cancelled if you have been declared bankrupt; you have not paid your contribution within 21 days; you have not accepted the grant of legal aid; you have acted unreasonably so that the Crown is involved in unjustified expense; your financial position has improved substantially; the district committee receives later information casting doubts upon the chances of success; the district committee finds out that you have wilfully or negligently made false statements about your finances; you wilfully breach requirements of the act. Furthermore, if you die, any legal aid already approved will be cancelled and will not automatically he granted to your dependants.

LEGAL LOBBY By the New Zealand Legal Association