diary of a civil legal aid hack

Pay day has arrived. As promised the ministry has deposited taxpayers’ funds into one’s account without many deductions or revision to the invoice form. Suddenly after around nine months since beginning the civil only provider application process, the payment makes the form filling and bureaucracy begin to feel worthwhile. This is not to belittle the satisfaction felt in being able to assist the less well off with their will and estate disputes but one needs to eat, pay bills and shoe feet.

It took from mid-August till mid-December to get an interim grant, limited for this, my first, legal aid case. My second application was far quicker and resulted in an initial interim grant permitting chargeable time just to respond to the Commission’s queries.

The first client wants her home back but suffers several disadvantages including; substantial breaches of her right to occupy an estate property held in deceased will trust, a two-year-old possession order against her, an executed eviction warrant, trespass notice, being personally bankrupt and having suffered strokes impairing her speech. The interim grant, when it finally arrived, was limited to applying for an injunction to prevent a sale of an estate property which was not quite all that I wanted but it was better than nothing.

My client could not apply through me for legal aid to apply for an extension of time to appeal the Court of Appeal because your humble servant was not and is still not an approved provider of legal aid in the Court of Appeal. One has since applied for such approval but not having appeared in the Court of Appeal at least five times in the last five years in the required capacities, one is not very hopeful that such application will be favourably considered.  

Guided by the grant and urgency being real and present, we set about arranging for the lay client to apply by originating application for a without notice freezing order. After a day of frantic template moulding in lower ground floor car shed/office, the lay client and her counsel drove across the rural North Island valley sold to settlers’ in the nineteenth century following Maori Land Court decisions authorizing individuals to do so and then crossed into the prime rolling hills confiscated in 1860 following the land wars to reach the High Court – Registry.

The counter was not happy. Yes your client may apply for an issue fee waiver. No you may not issue without a solicitors signature. Yes I will administer its oath but the layout of your affidavit is wrong, nothing but the title on the cover page. You need an affidavit as to cause of action to use this registry.

This was a low point. We knew the case against a government department for making us homeless was weak but after months of applying to be a civil legal aid provider and more months of waiting and patiently answering the Commission’s questions about the case, time was limited. A tender of the property was due to close the following Monday. Could my lay client not just ask for draft papers to be placed before the judge? This was an ex parte application! Why are you standing on ceremony? I am counsel and officer of the honourable court. Ill call the judge myself.

The registrar was having none of it. You have four days. You can get a solicitor and come back with your papers in order.

As a barrister sole, your humble servant had completed the intervention rule CPD and having previously been a solicitor and persuaded the Law Society that he/she could act for lay clients directly in “suitable circumstances”. As the stern voice behind the glass knew, at the point of issuing proceedings the circumstances stopped being suitable and a solicitor on the record. An address for service was required.

After a visit to the head office of a friendly local partner proved fruitless; how can I sign this certificate? Our mood on that bleak asphalt foot path fell further.

There was another possible trust specialist I’d bumped into at a social event. We hesitated to begin another fruitless journey. After a few steps my client recognised a firm’s name written on a sign on the path above us.

Through the chrome and plate glass doors, the place looked too expense. We rested to think on padded seats inside the facade on the ground floor and toyed with how to approach him. Call on the phone? Arrange an appointment? Would we even get to reception?  In the end I called the lift. Let’s just give it a try. We got in and I pressed 3.

As it turned out the client seemed to know the solicitor who was conveniently there in reception as our lift doors parted. We were in his office and seated within moments and he seemed to know what the case was about already. I was about to go and play golf but yes I’ll do it pro bono. I’ll retain you on the basis that you get paid by legal aid and you’ll do all the work.

While not ideal, it was enough to be getting on with. We would live to fight another day. Within another half hour or so and an exchange of email, I was holding a signed originating application and we were out the door ready to head home, regroup and face the registrar again the following day which would be a Thursday.

The rest of the story ran roughly as expected, a series of phone conferences with judges, interim freezing order, application listed for urgent trial, Christmas holidays spent in the library on submissions filed by phone email from an international airport while preparing to board, a bench found jurisdictional justification to trip up an attack on the state sponsored homelessness, a reserved decision and we were done. 

Not being an approved Court of Appeal legal aid provider, a appeal was not an option unless on conditional fees which looked like a bleak prospect.

Billing took the best part of a day between school drop off and pick. Filling these forms is a learning experience.

My first pay day was also mostly spent preparing useful background in a proof of evidence to support a reply to a case officers list of questions in civil legal aid certificate number two. This is also a housing related case but this time my client does have a number of legs to stand on and my application could not be politely described as “novel” as the first one had been.

Civil legal aid provided by a sole practitioner is hard, there is much unpaid preliminary input needed but the work is fascinating and rewarding. There is clearly unmet demand for legal services in rural areas. I’m getting valuable court experience and building an advocacy practice from scratch having returned home after decades overseas. The odd private case to help make ends meet.

If still at it in a few months and your editor permits, a further report will follow.

Yours truly,

 Tane Wahine Hackett

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