‘We have to get the message out, we have to raise the profile of the Access to Justice Foundation (AJF) and ensure we are providing support to the pro bono legal advice sector at this challenging time,’ says Ruth Daniel. In January 2012, the Access to Justice Foundation (AJF) appointed their first full time chief executive, Ruth Daniel, writes David Gilmore.
In an interview with LegalVoice, Ruth explains the aims of AJF and how a new source of funding could make a real difference to improving access to justice. In her first six months in the job, Daniel has been working to raise the profile of AJF to interested parties and to increase funds raised for the pro bono legal advice sector. She explained that the organisation has been established to receive and distribute new monies that help provide pro bono legal assistance to those who need it most. The Foundation distributes funds to national organisations and strategic projects, but also funnels funding through the established Regional Legal Support Trusts (e.g., the London Legal Support Trust) which in turn distribute funds to local advice agencies such as Law Centres.
‘We currently raise income from two sources: unclaimed client account balances and pro-bono costs orders’.
AJF last year launched a campaign (called ‘It’s not just peanuts’) supported by the City firm Hogan Lovells, which called upon lawyers to donate unclaimed client account balances where the unclaimed figure was less than £50.
The campaign about pro bono costs orders has been successful in highlighting how significant funds can be raised by way of costs orders. The Access to Justice Foundation website explains that pro bono costs are ‘like ordinary legal costs, but where a party had free legal representation. If a civil case is won with pro bono help, pro bono costs can be ordered by the court, or included in settlements.’
Daniel is hopeful that a new important source of funding will arise out of a proposal from the Department for Business, Innovation & Skills (BIS). BIS is consulting upon a range of suggestions to discourage anti-competitive behaviour. One key proposal is the introduction of collective actions and for left over damages awards to be donated a single recipient such as the Access to Justice Foundation, where such damages have been awarded to a class of individuals, not of all whom can be traced.
If these residual funds are donated to the Access to Justice Foundation, substantial monies could be raised which can then be passed on to advice agencies.
‘It’s vital to secure these funds for the benefit of the sector and the Access to Justice Foundation would greatly appreciate the support of as many organisations and individuals as possible by submitting a supportive response to the Consultation. Every response counts,’ said Daniel. ‘Whatever your thoughts on the overall merits of collective actions or the other elements of the proposals please take this opportunity to raise funds for the advice sector by having it noted that if the proposals are introduced, you believe residual funds should go to the Access to Justice Foundation’.
Responses can be made very simply by sending a short email to firstname.lastname@example.org. Even submitting the briefest response to questions 20 and 21 (which specifically deal with the issue of the residue funds) would be of real benefit.
In order to assist organisations, who wish to show their support for the residual funds being directed to the Access to Justice Foundation, the London Legal Support Trust has drafted the below response to Questions 20 and 21 of the consultation which you are free to make use of and adapt and which will make it extremely easy for you to respond.
The deadline to respond to the consultation is 24 July.
Sample response to Questions 20 and 21 of the Consultation on Private Actions in Competition Law
Question 20: What are the relative merits of paying any unclaimed sums to a single specified body, when compared to the other options for distributing unclaimed sums.
We view the merits of paying unclaimed sums to a single specified body as significant.
A single destination that is set out in statute would be beneficial because:
- The problem of trying to find a suitable recipient for each case is avoided, as well as the associated lobbying of judges and potential satellite litigation which would detract from both the sentiment and practical application of collective actions.
- The named charity would receive funds in the public interest and would retain its independence having not been involved in the litigation.
- A full deterrent effect against anti-competitive companies is achieved as companies practising such behaviour will need to compensate the total amount of harm the court decided was suffered by individuals from their anti-competitive action, regardless of the number of individuals who came forward to collect their damages.
- There would be legal certainty for all parties and the court, before and during litigation.
- The system is administratively simple, which would save time and cost for the parties and the court, maximising the funds available from such actions.
We view the disadvantages of the other possible options as being:
- There would be difficulties in identifying who is the appropriate cy-près beneficiary.
- Of the two major options for cy-près, the ‘price roll-back’ might well not benefit the previous customers harmed. Also, this might give the (anti-competitive) company an advantage over its competitors.
- The second major option to pay the residue funds to an organisation, usually a charity, considered the next best beneficiary to the harmed individuals involves the need to decide who the most appropriate recipient is. This may again place undue demands on the time and funding available.
- As mentioned previously, it has been witnessed in other jurisdictions that class-action judges are routinely lobbied by charities seeking the money, a problem reported by the Civil Justice Council in their report on collective proceedings (page 181). Furthermore, lawyers seek to suggest their personally favoured charities, which would lead to inconsistent outcomes and irrelevant favouring of particular charitable causes.
Escheat to the Treasury
- This option could be viewed as a form of taxation, or a civil fine, which bears little relevance to the individuals who have been harmed.
Reversion to the defendant
- The guilty party benefits from an unjust windfall.
- Reversion creates an incentive for the company to minimize awareness of the award and the number of customers claiming.
Question 21 – If unclaimed sums were to be paid to a single specified body, in your view would the Access to Justice Foundation be the most appropriate recipient, or would another body be more suitable?
We view the Access to Justice Foundation as the most appropriate recipient for two main reasons:
1. Support for access to justice
- The purpose at the heart of collective actions is to enable access to justice for individuals who would otherwise not have it, in this case from illegal anti-competitive of companies. Therefore it is logical that residue damages be used to support further access to justice for the public.
- Reductions in funding for legal assistance are having a severe impact on the availability of free legal help and therefore access to justice at all levels.
- The advice sector and pro bono sector have an increasingly vital role in providing free legal assistance to those who cannot afford it.
- The sector’s work is targeted at those not currently empowered by the law whether through poverty, social exclusion, or lack of education.
- Improved access to justice will in turn benefit many other charities, whether because the beneficiaries of the charity receive legal help, or because the charities themselves directly receive free legal assistance.
2. The Foundation is a trusted national grant maker
- The Access to Justice Foundation is an independent charity, acting in the public interest to improve access to justice.
- The Foundation’s purpose is to receive and distribute additional funds to support free legal assistance and to support access to justice generally. To this end it acts on behalf of the sector to raise money and then make grants to legal help organisations across England & Wales.
- The Foundation has a trusted role in the advice sector and legal profession, who worked together to establish the charity.
- As a national grant maker the Foundation is able to support the whole advice and pro bono sector in providing free legal help.
- The Foundation works with the regional network of Legal Support Trusts (which includes us, the London Legal Support Trust) across England & Wales, and with national organisations, in order to strategically provide funding at all levels.
- As the recipient of pro bono costs under the Legal Services Act 2007, the Foundation has experience with receiving funds from litigation and has the necessary expertise when legal issues arise as well as dealing with inherently unpredictable sources of income.
- The Foundation was recommended as a suitable body to receive residue funds from collective actions by the Jackson Review of Civil Litigation Costs, the Civil Justice Council and the HMT Financial Services Rules Committee.