Missing out on civil legal aid a justice issue, lawyers say

Saturday, 11 August 2018

Brian Cooke at his home in Red Beach, Auckland. Cooke is unable to find a lawyer to act for him in a civil case - a dispute with his sister over a family estate.

The legal aid system is failing people engaged in civil suits, lawyers say.

But any potential for an overhaul of the system won't be addressed until next year, following a review of the system, Justice Minister Andrew Little says.

NZ Law Society's Legal Services Committee convenor Liz Bulger says a reduction in the number of lawyers providing legal aid is resulting in an increasing gap in access to civil justice.

There are less civil legal aid providers than there were five years ago. Figures show between 2012 and 2016 the number of lawyers providing civil legal aid dropped by half.

* Fewer lawyers taking legal aid could lead to justice issues

* Lawyers quitting legal aid**

It was particularly a problem in the regions, in places like the West Coast, where Bulger wasn't aware of any civil legal aid providers.

Law firms were no longer doing legal aid because it was not financially viable and it was an administrative burden. That meant the remaining providers were 'unconscionably busy', she says.

'If you want to give people access to justice then something needs to change to allow that to happen because at the moment the providers aren't there to cater to the demand.'

Human rights lawyer Tony Ellis says it is a 'national disgrace' people are missing out.

Ellis has turned down more than 170 civil cases so far this year. Last month he wrote to Little about his concerns.

'I can attest from experience…the paperwork involved is indeed onerous, not to mention the pretty poor remuneration.

'The system is, with respect, a national disgrace, and should be reviewed, as it's clearly not fulfilling its purpose in providing timely civil legal aid to the disadvantaged.'

Justice Ministry figures show in year to June 2018 there were 462 civil legal aid providers in the country. Of those, only 35 worked on five or more cases.

'It is a major worry that there is so few people who do it because it is a denial of access to justice,' Ellis says.

Auckland man Brian Cooke needed a lawyer to act for him in a High Court case over a disputed family estate, and started with a list of civil legal aid providers on the Ministry of Justice website.

'I went through 50 or 60. More than half of them didn't reply, some said they were too busy, some said they didn't do legal aid.'

He couldn't find anyone who could take on his case and had no choice but to go privately, which will cost thousands.

'It's a complete joke.'

Nelson lawyer Steven Zindel says the struggle to access legal aid in civil cases meant there were thousands of people who were unrepresented when it came to employment disputes, ACC cases and High Court reviews.

Figures from the Employment Relations Authority (ERA) shows in the year until June, nearly 200 people who lodged applications were unrepresented.

Zindel says there are delays getting legal aid approved and requirements were 'stringent'.

People representing themselves were losing cases they should have won, he says.

Justice Minister Andrew Little says he is aware anecdotally people struggled to find civil legal aid but says it is hard to quantify.

It is possible cases that did not meet the criteria were being denied by multiple legal aid providers for the same reasons.

'This does not mean that someone cannot find a civil legal aid lawyer, it means that their case is unlikely to succeed so a lawyer will not take it on.'

The Ministry is undertaking its triennial review of legal aid policy, meeting with lawyers to hear about the issues they were experiencing and how those could be addressed.

Little said he would make decisions following the review in early 2019.