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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 Charles Hale Mr Charles Hale , Oldham West 12:00 am, 23rd January 1964

The whole Committee should be grateful to the hon. Member for Tiverton (Mr. Maxwell-Hyslop) for putting down this Amendment. I confess that my principal interest in these proceedings was in another matter but, when confronted by this Amendment, I find myself wondering what its effect would be—and what, indeed, will be the effect of the Bill itself. I am not able to see how it will work, and I think that it may work somewhat unfortunately.

I say at once that in this matter I speak as a layman. I have no recent professional experience of the working of the legal aid system. My experience is to a Member of Parliament to whom individual constituents complain from time to time about the very high proportion of their income that has to be paid to secure legal aid. That is the first anomaly of the Bill, as I understand it.

I cannot quote figures offhand with any degree of accuracy, but a man with a certain income is granted legal aid conditional upon his contributing a very substantial sum. Very often, indeed—although my experience really goes back far too long—he is rather worse off in those circumstances than if there had been no legal aid at all, when he might very well have found a solicitor who thought that the man had a good case, and would accept a small sum to cover expenses and conduct the litigation. That used to be called doing it "on spec", but I never believed it. I think that solicitors honestly accepted a responsibility to conduct litigation where it was obviously in the public interest that it should be conducted.

5.15 p.m.

There used to be a system of poor person's divorce, and I found myself, as a singularly unprosperous solicitor at the time, very greatly out of pocket as a result of conducting a dozen or fifteen or twenty of these divorce cases. I must confess that I began to review my procedure when a lady asked for a poor person's divorce. When I asked her her occupation she replied, "I am a domestic servant employed by one of your rival, but very prosperous, solicitors, who does not take poor person's divorces."

Frankly, my reading of the matter has been somewhat perfunctory. A man earning, perhaps, £750 a year, who has had to contribute £75 to the costs of the case as a condition of getting part legal aid, may have the verdict given against him. We must remember that the unsuccessful litigant is not usually a scoundrel, but a man who has just not been able to obtain the necessary witness. He may have just failed to satisfy the court that his honest account of the circumstances is sufficiently corroborated to enable the court, with certitude, to give him the verdict. He has had to pay £75, but does a man getting twice as much as he earns have to pay £75, or does he get 100 per cent. grant of costs under the Bill? If so, it seems to be an anomaly.

My hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) was asked about the words "just and equitable". My hon. and learned Friend could answer better than I, but I will give an answer. The court would say that the obvious meaning of the words was that the person had been faced with unnecessary litigation, and unnecessary, unjustifiable expense, and that it would be just and equitable that some contribution should be made from the public funds.

If the words "just and equitable" import the possibility of financial consideration, one comes up against a second aspect. A great deal of litigation is conducted on behalf of defendants by insurance companies, through their solicitors, but the defendant is still the defendant. Presumably, therefore, if a person is insured, the defendant will not be able to satisfy the terms laid down. It is not an easy matter. I do not hold a special brief for insurance companies, and they do not inspire in me a passionately sympathetic emotion, but they are, in the main, highly reputable concerns administering their affairs with due regard to the public interest. But I do not see why an insurance company should be exempted from the provisions of the Bill.

There is a third difficulty. We may say that we have to establish "severe financial hardship", and I must admit that I have great sympathy with what has been said about "severe". It seems to me to be a word with no possible definition, and one that it would be quite impossible to interpret without some sort of measuring standard. I do not think that the word has any judicial meaning of any kind or description. Is it "severe" if a man worth £1 million has to pay £1,000 unnecessarily? I do not know. One would have thought that it was if one had to pay £1,000 out of £2,000. It is severe on the unsuccessful plaintiff to have had to pay £75 out of an income of £10 or £12 a week. I may be wrong about the figures and I do not want to use figures which might convey a misleading impression.

Now we have a situation under the Bill as drafted in which a moderately-incomed person has succeeded. The comparatively poor plaintiff who has been assisted has paid his money by way of whatever contribution has been ordered. He has lost his case and the next test applied by the Measure is that the court will decide what contribution is to be made by the plaintiff. If the court decides what contribution is to be made by the plaintiff, that is presumably after that decision has been appealed against. Indeed, it excludes appeals anyhow.

It is obvious that the plaintiff is extremely unlikely to pay that money. What the successful defendant gets out of that is the future right to collect, by the sort of miserable process by which one tries to collect money before selling the debt to a collecting firm, and with the possibility of the plaintiff's going bankrupt anyhow. Therefore, already, by emphasising that, which seems an unnecessary provision in the Bill, we have hamstrung the successful defendant's chance of getting most of his costs.

I assume that in this matter the successful defendant has to make an application and has to satisfy the court. He has to be told that he must establish severe financial hardship. He has to give particulars to the court which will land his creditors on him the next day. It is not easy to establish severe financial hardship. The successful de- fendant is presumably, and certainly is for all practical purposes in this matter, a man of unblemished character against whom no judgment has been recorded and who has had to face unconscionable expense and worry in contesting litigation. A judge says that Parliament in its unforeseeable wisdom has said that the man must establish to the court that he will suffer severe financial hardship. The man says, "I am a bank manager but I owe £500 to a bookie and I do not want anybody to know." What do we do about that? Are the proceedings to be heard in camera? That would be undesirable because in that case anyone could get away with almost anything in a matter of this kind. One does not have to disclose one's possessions in the Bahamas.

The unfortunate man has to go to court and speak of circumstances which he may have been trying to disguise from everybody but his wife for a long time. I may be quite wrong about this. The Parliamentary draftsman has to foresee every possibility in vacuo, but he really seems to have produced here a set of circumstances in which the Bill does not seem likely to work.

The Explanatory Memorandum says that this provision will cost only £55,000 anyhow. I would be the last to suggest that that is a small sum. I wish that I had that much myself. But it is now a small sum in a House in which at one time Hume used to complain about the expenditure of half-a-crown. That, of course, was a different Hume and the name was spelled differently. We, of course, are in a House which can throw away £100 million. That is the unhappy difference in the state of our affairs.

If people feel that they cannot take advantage of the Bill without establishing their own poverty in public it does not seem to me a beneficial Measure. If fairly well-to-do litigants are to be reimbursed more than if they had applied for legal aid and had received a modest grant that seems to me a little inequitable too.