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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

Maintenance in the non-matrimonial sense—against the person who backed the plaintiff.

Under the Legal Aid Scheme, the State has put itself into the position—I think quite rightly and I do not criticise this—of selecting certain of its subjects and backing them in a legal action against others of its subjects. The principle to which I strongly adhere is that if it does that and does not succeed in proving the case which it has backed, it should reimburse the successful defendant. If it is held that the reason that the case has been lost is that there was inadequate evidence to prove it, one of two propositions must be true: either the case should not have been brought in the first place, or greater diligence in securing witnesses should have been shown by counsel or solicitors for a legally-aided plaintiff. There is no third alternative which excludes the possibility that the defendant is also a subject and equally entitled to the protection of the State.

Having delivered myself of those observations, it seems to me to be obvious that they are not widely shared in this particularly thinly-populated Chamber, and, therefore, it would be purposeless to carry the Amendment to a Division, which I had every intention of doing. Nevertheless, I am still extremely unhappy about this. I am apprehensive not so much about how High Court judges will interpret this extremely offensive restriction as about how county court judges will interpret it. I know not whether there is any machinery by which advice on this matter can be given. If there is no such machinery, solicitors will be in the position of not knowing what advice to give to their clients when deciding whether to defend an action against a legally-aided person until a considerable volume of case law has been built up.

6.15 p.m.

Lastly, when it is said that insurance companies are rich, let us remember that if this proposition is true it is true only because they raise considerable premiums from very many people. This has caused something approaching hardship to very many not very well off people who have had to pay increased insurance premiums over the last year or 18 months. When it is said that insurance companies do not need the same kind of justice as other citizens pleading before the court, this also means that the people paying their annual premiums to insurance companies, as they have to do under the Road Traffic Acts, must be selected as the people to bear the burden in this case.

This proposition in a modified form was put by my right hon. and learned Friend when he said that the general body of motorists, rather than people who were not motorists, should finance the expenses of insurance companies when they successfully defended an action. Since whether one is a motorist or not is scarcely a function of wealth but much more of whether a car is needed to do one's job, this is a somewhat bizarre test which it is difficult to substantiate.

We come back to the original question of principle of whether the person who successfully defends an action brought against him with the maintenance—the assistance—of the State should be left to bear the whole of his own costs, unless he is also in receipt of legal aid. The debate has produced a much wider range of hard cases than I imagined when I tabled the Amendment.

I certainly had not in my mind the case of the legally aided defendant who also cannot get costs in this case. I must, therefore, express the hope that once we have seen how the Bill works in practice, and if it works in the way in which I fear it will work, both unpredictably and harshly—harshly because of the inclusion of the word "severe" in addition to hardship—it will not be 14 years, or even 14 months, before remedial action is taken.

I do not know what is the total cost to the taxpayer of getting a Bill through both Houses of Parliament, but I suspect that it compares very unfavourably with what would have been the cost of accepting this Amendment. With those words, and with what, I admit, is exceedingly ill-grace, I beg to ask leave to withdraw the Amendment.