The Bar Council appointed a multi-disciplined working party of leading QCs, statisticians, economists, and academics to examine the MoJ proposals to save £350m over the next four years. It concluded last month that the cuts could end up costing the taxpayer more than they save.

Stephen Cobb QC, chair of the Family Law Bar Association, who led the Bar Council’s response, said the cuts would result in “longer trials, more appeals, more costs and the risk of miscarriages of justice”.

“We fear these attempted cuts, being so crude and brutal, will cost more than they save,” he said.

“They will trigger a surge in DIY litigants which risks gridlock in the courts, as they struggle to get justice. This will slow down the court process considerably. In the absence of proper or reliable evidence on which the proposals are based, and our identification of clear unintended consequences, the government cannot say with any confidence that the proposed cuts will not end up costing as much as it is trying to save. Put simply, the proposals don’t add up.

“We think that the effects on the administration of justice and the running of the courts, and the burden on other departments—most notably the Department of Health—could cost the government sums approximating to the sums it is trying to save.”

The MoJ proposals, announced in November, would halt legal aid for personal injury, clinical negligence and many family and housing cases.
Justice Minister Jonathan Djanogly said: “The current system encourages lengthy, acrimonious and sometimes unnecessary court proceedings, at taxpayers’ expense, which do not always ensure the best result for those involved.”

The Bar Council’s detailed 173-page response to the consultation, which ended in February, criticises the MoJ’s impact assessment as “woefully deficient in relation to financial data”, noting that many of the proposals for cost savings do not estimate those likely savings.

It highlights some unintended consequences of the cuts that could increase costs for the justice system as a whole, including:  an increase in false allegations of domestic violence, since this is the only way to secure legal aid funding in family cases; a higher number of contested injunction hearings; proceedings becoming more not less adversarial because parties are self-represented; and an increase in appeals where litigants in person have failed to make relevant points.

It expresses concern about the “potential inequality of arms” in ancillary relief cases, where one party, usually the wife, will be placed at a “considerable disadvantage”.

It warns that clinical negligence cases, which usually require extensive investigation at an early stage, are unsuitable for funding through conditional fees. It says there is a potential breach of Article 6 of the European Convention on Human Rights where a child’s access to justice is determined by their parent’s means and not their own.

The Bar Council paper proposes alternative ways to save MoJ funds, including unfreezing defendants’ assets to meet the cost of their legal services, introducing compulsory legal services insurance for all corporate officers, and twin-tracking private family law cases.