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Clause 1. — (Power to Award Costs Out of Legal Aid Fund.)

Part of Orders of the Day — Legal Aid Bill – in the House of Commons at 12:00 am on 23rd January 1964.

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Photo of Mr Norman Cole Mr Norman Cole , Bedfordshire South 12:00 am, 23rd January 1964

I support my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop). The matter of the unassisted party has been a bone of contention for many years, since the purport of the first Legal Aid Bill began to have its effect. Many of us have felt great sympathy for the unassisted party. The hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) may be sure that any question of the dilution of the value of legal aid or its respectability, as it were, is more than well taken care of by those who administer it, by the careful consideration which takes place before they withhold it or grant it in cases which merit it.

The position could arise where an unassisted party brought what proved to be a legitimate action against an assisted party and won his case but was entirely eliminated from receiving legal aid by paragraph (a) of the Clause. He would, therefore, be already under a defect, although properly in his own view he brought an action. As the assisted party did not initiate the proceedings, the unassisted party, having initiated them, would not in any case receive any kind of costs. Over the years many people will come within this category, either because they do not apply for legal aid because they are too proud to do so or do not wish to, or because they are not entitled to receive legal aid. The fact remains that if they initiate proceedings and win the case they will not recover anything by way of costs.

I ask the Committee to consider the hypothetical case—perhaps it is not always so hypothetical—of a man who is on the borderline for entitlement to legal aid. He decides not to apply. He is not the initiating party. He fights the case and wins. I emphasise that he is not in receipt of legal aid. Possibly he would not qualify because of paragraph (b). If because of the nature of the action and his own financial position he were able to qualify as an assisted party and I ought an action brought by another party, although admittedly it might take it outside the conditions of the Bill, the inhibition contained in lines 5 and 6 would not apply to him, because he himself would be an assisted person.

Therefore, as the Bill stands it may have the result of encouraging a number of people, who at present are prepared to steam along on their own resources although they might just qualify for the receipt of Segal aid, to apply for legal aid. When they see the inhibitions under which they will suffer, in that even if they win they will not recover costs, they will try to put themselves into the privileged category, namely, apply for legal aid which, if granted, will mean that they will recover costs if they win. If they do not win the case, they will still be in receipt of legal aid. I believe that this is very dangerous. I can imagine people who are just as agile of mind as anyone in the House of Commons making use of lines 5 and 6 to get round the position.

I take a slightly different line from my hon. Friend the Member for Tiverton. If the case that has been mentioned of a man earning £2,700 a year would not come within the definition of the phrase "suffer severe financial hardship" cannot we find better words to cover such cases? There are many examples of what is, after all, a legal means test. The original Legal Aid Act must have contained some words to make this clearer. We may find a suitable definition of what is "just and equitable" to suit my hon. Friend the Member for Tiverton because there must be words that are more definite in meaning and application than "severe financial hardship".

5.0 p.m.

It must also be remembered about unassisted parties who, in the first instance, do not receive legal aid for the employment of their professional advisers or aid for any other reason that they are unassisted and that, if they are of sufficient means, they will not get any costs after the case, despite anything else

I suggest that there is a definite area of unfairness, an area which needs to be considered in detail and an unfairness which needs to be solved, even if it would cost £340,000 to £350,000 a year. That cannot be considered an enormous sum—if it is, I would be surprised—against the whole background of legal aid. As has been mentioned, this may be the last Bill of its kind for some years and we should, therefore, take this opportunity of not perpetuating what could be an unfair position

I hope that the Attorney-General will think about this again. If he cannot wholly accept the Amendment I hope that he will try to find another form of words which will pinpoint more closely the position of the man who cannot afford to stand his own costs, even though he has withstood action without having legal aid.