HAMLYN - College of Social Sciences and International Studies ...

Justice and Access to Justice
money by providing the basis for competition and by fixing
prices in a way that encourages greater efficiency". 28 The
obvious risk is that standards of service will decline since,
whatever protestations are made about insistence on quality of
work, the natural tendency will be to accept the lowest bids.
Lord Irvine made the point when he was Shadow Lord Chancellor.
Labour, he said, was against competitive tendering "because
of the inevitable tendency to favour low-price against higherquality
bidders". 29 The Legal Aid Board Research Unit has
warned that American experience showed that competitive
bidding created an incentive to weigh cost over quality. Contrary
to the rhetoric, cost tended to go up whilst quality went
down. Fixed price contracts resulted in case overload, less than
adequate representation for clients, and instability as contractors
were replaced from year to year. It also involved heavy administrative
costs to process bids and negotiate contracts. 30
The decision whether a particular client gets state funding for
a civil case will be based first, as previously, on a means test, but
the traditional merits test will be replaced by the new Funding
Code. The old test was simple and was the same for all cases.
(In essence, were there reasonable prospects of success and was
it reasonable in all the circumstances that public money be used
for the case?) Under the new Funding Code there will be a
different test for different types of case. The draft Code said:
"Rather than attempting to apply one universal test to a huge variety
of civil cases, the new Funding Code has the flexibilityto apply
different criteria to different types of case." 31
It described the old test as "vague and subjective". Instead
the new test would be "clear and objective" with "specific
criteria in terms of prospects of success, costs and damages". 32
28 op. at, n. 9 above, at para. 3.18.
29 op.cit., n. 10 above, at p. 10.
30 P. Pleasence et al., "Profiling Civil Litigation: The case for research", Legal Aid
Board Research Unit (1996), pp. 93-94. In 1998-1999 the Board spent £3.7
million in managing 2,725 suppliers or £1,385 per supplier. (Legal Aid Board's
Response to the LCD's Consultation Paper on the Community Legal Service,
September 1999, p. 24, para. 3.10.) Obviously, negotiating contracts and
managing and auditing providers under the new system will involve considerably
more work.
31 Legal Aid Board, The Funding Code, (January 1999), p. 2.
32 ibid., p. 5.
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