154. |
The most
direct response to the problems of unrepresented litigants is obviously to change them
into represented litigants. Assuming that the litigant is unable to finance the
litigation from his own (or any insurer's) resources, one must consider the practicability
of finding funding from elsewhere. The source of finance may be public or private. |
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155. |
Public
funding for civil litigation in Hong Kong is by legal aid pursuant to the Legal Aid
Ordinance, Cap 91. |
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155.1 |
This is
confined to individuals (excluding corporations and unincorporated associations) whose
financial resources should not exceed $169,700, (Note 112) with a discretion given to the director to waive this
limit if a Bill of Rights issue is raised in the litigation. |
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155.2 |
Additionally,
an individual may qualify for legal aid in respect of a personal injury, Fatal Accidents,
Employees' Compensation or medical, dental or legal professional negligence claim under
the Supplementary Legal Aid Scheme, even if his financial resources exceed $169,700,
provided they do not exceed $471,600. (Note 113) |
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155.3 |
Certain
types of proceedings do not qualify for legal aid, including actions for defamation and
simple debt actions where no issues of defence arise. |
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155.4 |
The grant
of legal aid is subject to the applicant showing reasonable grounds for taking, defending,
opposing or continuing the relevant proceedings. (Note 114) It is also subject to certain discretions exercisable by
the Director of Legal Aid. |
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156. |
It is
beyond the remit of this Working Party to debate the adequacy or otherwise of the legal
aid regime. In principle, the allocation of public funds to legal aid, particularly for
civil as opposed to criminal cases, must have its limits. Nonetheless, it is to be hoped
that in ongoing reviews of the scope of legal aid, notice will be taken of the growing
phenomenon of unrepresented litigants and of their impact on the civil justice system,
prompting consideration of broader public funding of meritorious claims by such litigants.
Legal aid should also be considered as a funding source for "unbundled litigation
assistance" mentioned below. |
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157. |
In the
United States, it has long been an accepted practice that representation may be privately
funded by means of contingency fees whereby lawyers accept the cost risk against the
incentive of a share in the damages if the case is won. In the United Kingdom, the civil
justice system has not gone so far, but it has embraced "conditional fee
agreements." (Note 115) These are agreements aimed at enabling unfunded litigants
to bring claims with private lawyers bearing the cost risk, the incentive being a success
fee involving an uplift by a stated percentage of the fee otherwise chargeable. |
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158. |
While these
are controversial developments, the argument in their favour is that they extend legal
access to persons who may otherwise have no means of enforcing their legal rights. From
the civil justice system's point of view, to the extent that potentially unrepresented
litigants secure legal representation, such arrangements alleviate the difficulties posed
by litigants in person. However, consideration of conditional fees also falls beyond the
scope of this Report. |