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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 Sir John Hobson Sir John Hobson , Warwick and Leamington 12:00 am, 23rd January 1964

That gentleman, no doubt, would be able to persuade the court that there were so many details that he did not need to detain the judge and that the judge had better remit the matter for the Master or Registrar to consider.

The Bill provides that these matters can be discussed before the Master or the Registrar. While the proceedings would not be in camera, they do not usually attract much publicity. After all, we conduct our litigation in public and this is, on many occasions, one of the disadvantages of having public litigation. Its advantages, however, are always thought to outweigh the disadvantages that from time to time arise.

The right hon. and learned Member for Newport and many others raised the question of how the Bill would work without the Amendment. To justify rejection of the Amendment, I ought to say a word about that. My noble Friend the Lord Chancellor has consulted the judges, including the judges of all the divisions of the High Court, and he has every reason to suppose that they will be able satisfactorily to operate the provisions of the Bill as they stand. It gives them a good deal of latitude. It is intended, and the Bill points clearly to the fact, that help should be given in the very hard cases. The phrase used is "severe financial hardship". That is what the Bill is intended to do.

It is exceedingly difficult to choose the right words. The right hon. and learned Member for Newport asked whether I would consider other words. Either one chooses other quite general words, which would create just the same difficulties and precisely the same problems as to how they would be applied by the judges, or one must lay down an elaborate code stating what are to be the disregards, what is to be allowed for each child and how to deal with capital, with income, with tax, with chattels, business and trust interests and every other sort of thing, and strike a balance in accordance with those regulations, then take a percentage of the balance and say whether somebody is one side or the other.

In view of the infinite variety of human circumstances, it would be impossible to devise a code which could be laid down with any satisfaction that would not create injustice. Therefore, it was thought better, while having what is, admittedly, some restraint or restriction, to have a phrase which, it was thought, the judges would be able to apply fairly satisfactorily. I do not want to descend to details, but I was asked what was the situation in regard to numbers of figures almost all of which were marginal. Some of them were plainly severe financial hardship, and there will always be an area in which it is plain that it would be a severe financial hardship. There are bound to be other cases where the matter would be marginal.

I would, however, think that any reasonable judge would have asked himself, "Suppose that my net income was that of the successful unassisted litigant and I was asked to put my hand in my pocket and produce that sum of money, would I call it a severe financial hardship?" On that test, I would imagine that it would soon become apparent from the practice of the judges that the phrase deals with the cases that should be dealt with.

I do not wish to descend to figures, and anything which I say would be only my own judgment and would have nothing whatever to do with the way in which the judges might approach the matter. I would, however, think that a man with a net income of £2,750 a year who had to find £500 from his pocket, particularly if he had a wife and family, would certainly suffer severe financial hardship and that almost anybody would have described it as a severe financial hardship. As I have pointed out, the smaller the income of individuals, the less margin they have for spare cash. The more likely they are, therefore, to succeed in persuading a court that it would be a severe financial hardship for them to meet any costs.

The right hon. and learned Member suggested that the right test was whether a person of moderate means was having his annual budget disturbed in a material sense. Although that is not written into the Bill, I accept it as a good test of the way in which the test of severe financial hardship should be applied and the way in which, I hope, the judges would apply it.

All I can recommend to the Committee is that we should not pass the Amendment. We should leave the phrase in the Clause and see how it operates, watch the practice and experience of the judges and the way in which they apply it and later, if it proves to be unsatisfactory, amend it.