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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 Robin Maxwell-Hyslop Mr Robin Maxwell-Hyslop , Tiverton 12:00 am, 23rd January 1964

There are still a number of things about which I am unhappy. One which has not been mentioned is that there is, I understand, no appeal against an interpretation of "severe financial hardship" which differs greatly from that given by my right hon. and learned Friend the Attorney-General. If a county court judge interprets it completely differently, the successful defendant who is denied costs has no appeal from that. He or she has "had it".

Secondly, the test offered by the right hon. and learned Member for Newport (Sir F. Soskice) could much more correctly be described as a test of financial hardship than as a test of severe financial hardship. If the test which the right hon. and learned Member suggests is really a test of severe financial hardship, the word "severe" in that case is redundant.

In such cases as I have read, the courts often assume, with logic, that if a word is written in it is used for a purpose. If "severe" is added to "financial hardship", it is, presumably, included to accentuate the degree of hardship which has to be established before an order for even part of the costs can be made. It seems to me that potentially we would be opening the door to the same sort of criticism of allowances for costs as exists for the penalties imposed by differing benches for motoring offences, for example, It is generally agreed that this is an evil, but it is not quite so easy to see how one can overcome it.

I am particularly concerned with the private individual and just as concerned about him in the county court on a lower scale as someone of great financial substance in the High Court. My own view is that much too much emphasis has been given to the obsession with insurance companies. If one says that the reason that they should not get any benefit out of these provisions is that they are very wealthy, that is surely establishing; the principle of one law for the rich and another for the poor rather than endeavouring to diminish it. Without doubt, the original Legal Aid Act remedied a large range of injustices. What is also undeniable is that it produced another range of injustices, a much smaller range and injustices of less magnitude, but we must recognise that it did produce injustices which had not previously existed. The Bill is introduced in recognition of that with the objective of reducing as far as pos- sible the injustices which the Legal Aid scheme brought in as bedfellows to those which it had eliminated. The question therefore is whether the Bill without Amendment has eliminated as many of the possible injustices as it reasonably could.

I seem to be very much in the minority in believing that it has not and that it would be a much better Bill if the Amendment were accepted. Possibly because I am not a lawyer, I still do not understand why the words do not mean what they say when they say: An order may be made under this section in respect of any costs if (and only if) the court is satisfied that it is just and equitable in all the circumstances that provision for those costs should be made out of public funds. I am most interested to learn from gentlemen learned in the law that these words evidently do not mean and are not intended to mean what they say and that they are not intended to mean "just and equitable in all the circumstances", but only that if a party successfully defends an action, he can get costs.

If the interpretation of my right hon. and learned Friend and other learned Gentlemen, that that is all the words mean, is correct, in appeal actions and in actions before the House of Lords the Bill will not do what my right hon. and learned Friend thinks it will. If all he wanted it to do was to ensure that in an appeal action the successful defendant could get costs, the Clause could have been phrased with much greater simplicity. As it has been very carefully phrased as it has, presumably that has been done with some purpose. What my right hon. and learned Friend has not told us is what that purpose is.