LSA v Fawcett - A case note

Felix Geiringer appeared as counsel for the Bar Association in the High Court and Court of Appeal in the recent case of Legal Services Commissioner v Fawcett. In this note to members he outlines why this case was important for the Bar Association.

The Court of Appeal has released its judgment in Legal Services Commissioner v Fawcett [2025] NZCA 63. The New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture was granted leave to intervene in both the High Court and Court of Appeal. This note is intended to explain why it was in the interest of members for the Bar Association to involve itself in this case, and how doing so was of benefit to the membership. 

The case concerned the funding of amendments to grant under the legal aid scheme. If a legal aid funded case requires funding outside of the fixed fee schedule, such funding must be sought by way of an amendment to grant. Sometimes, this requires the provision of an extensive legal opinion to justify the funding sought. The issue in LSC v Fawcett was whether the work involved in preparing such opinions is billable under the legal aid scheme. 

Mr Fawcett was convicted of murder based largely on confessions made to the police. After his conviction, Mr Fawcett was diagnosed with foetal alcohol spectrum disorder. An appeal against conviction was allowed by consent. Prior to Mr Fawcett’s retrial, defence counsel established that the confessions were not reliable in light of his diagnosis and should be excluded. Obtaining the legal aid funding needed to advance that case involved many amendments to grant applications. Mr Fawcett was required to provide detailed supporting information and justifications for the proposed expenditure, including such things as explaining the Crown case, the proposed defence, the proposed evidence (or task) and its relevance to the defence, why it was necessary, and how it would contribute to the defence case. Counsel sought funding for 90 hours of work related to these applications.

Material before the courts in LSC v Fawcett, showed that the past approach to the funding of such work had been mixed. Sometimes, applications for funding to cover the work of amendment to grant had been funded. Schedules of funding published by the LSC stated that such work would be funded. However, frequently funding was rejected, particularly in relation to criminal cases. In Mr Fawcett’s case, LSC rejected the application. On review before the Legal Aid Tribunal, the LSC successfully argued that such work did not involve the provision of a “legal service” under the Act and therefore could not be funded. 

Generally, the requirement to do non-funded legal work for legal aid cases has become a serious concern threatening the viability if the legal aid scheme. The number of lawyers willing to be listed providers of legal aid work fell dramatically during the 2010s. An access to justice survey conducted by the New Zealand Law Society in 2021 found that only 2/3 of listed providers that remained were undertaking legal aid work, and that a further 24% intended to stop providing legal aid work in the future. The survey found that inadequacy of remuneration and administrative burden were amongst the main reasons why lawyers were reluctant to do legal aid work. It also found that lawyers still doing legal aid work believed that 48% of their work on legal aid files was unremunerated. 

When the Bar Association conducted its own review of access to justice between 2015 and 2018, members also raised the same issue – the requirement on legal aid files to do large amounts of non-funded work – as a matter of serious concern. Specifically, the issue of non-funding of work done on amendment to grant application was cited as the primary example of such non-funded work. Members urged the Bar Association to lobby for a change to this policy. 

Two of the functions of the Bar Association are to promote access to justice and to promote the interests of the public in relation to legal representation and the operation of the judicial system.

The Bar Association was invited to intervene in the Fawcett v LSC appeal before the High Court. The Bar Association considered that it was important to accept the invitation so that it could inform the Court of its members concerns and assist the Court on the interpretation of the Act. The Bar Association did not make submissions on the validity of the particular invoices before the court. Instead, its involvement was confined to the broader question of whether work on amendment to grant applications could involve the provision of legal service as that term was being used in the Act.

The Bar Association’s position was that such work could involve the provision of a legal service. The Bar Association did not argue that all such work was always the provision of a legal service, merely that the LSC had been wrong to say that it could not be. The Association accepted that lawyers should not bill their clients for time spent administering the lawyers’ practices, and that this meant, for example, that the work of completing a legal aid invoice could not be billed as a legal service. However, where amendment to grant applications required lawyers to provide the LSC with detailed legal opinions, this was quintessentially the provision of a legal service. The Bar Association drew an analogy with privately funded cases saying that, if clients, before agreeing to fund an expert, sought an opinion from counsel on why obtaining the expert evidence would assist their case then the work done on preparing such an opinion would be billable legal work.

The submissions made by the Bar Association submissions were cited favourably in both the High Court and the Court of Appeal. Ultimately the position on the interpretation of the Act put forward by the Bar Association was accepted in both courts. 
While the Court of Appeal decision determines the proper interpretation of the existing legislation, the broader problem of maintaining a functioning legal aid scheme will require a cooperative approach with Government. 

The Bar Association has been actively working with the Ministry of Justice and the Legal Services Commissioner to address this broader problem and will continue with that work. On the issue of amendments to grant, the Bar Association notes the view of some members that the problem has worsened over the last decade due to the increased demand for the provision of more detailed information. A solution to the problem that is both functional and affordable may involve finding ways to reduce the requirement for such work to be undertaken. 

Barrister Felix Geiringer is a former NZBA Council Member and a long time member of the Association. Felix Practises out of Lambton Chambers in Wellington and is experienced in in a broad range of legal fields. He is used to dealing with difficult and novel matters.