G6.1. Getting representation for litigants in person

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.
155.	Public funding for civil litigation in Hong Kong is by legal aid pursuant to the Legal Aid Ordinance, Cap 91.
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.
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)
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.
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.
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.
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.
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.

 

Notes

112	Section 5(1).  <back>
113	Section 5A.  <back>
114	Section 10(3).  <back>
115	Under the Courts and Legal Services Act 1990, s 58 and s 58A. New South Wales also permits conditional fees via conditional costs agreements: Legal Profession Act 1987, s 174(1)(c) and Division 3.  <back>