POOR SCOTCH LITIGANTS (EXPENSES). (Hansard, 24 February 1920)

§ Mr. MACQUISTEN

I beg to move, "That leave be given to introduce a Bill to regulate the expenses of appellants from the Courts of Scotland suing in formâ pauperis in the House of Lords."

This is a Bill to restore to the poor people of Scotland certain rights which have been theirs for centuries. In Scotland the Law Courts have always been open, regularly open, to the very poor. We have a very beneficent system in Scotland. A poor man who has suffered a wrong, and shows proof, can present a petition to the Courts and ask for leave to appeal for justice in formâ pauperis. It is not done as a matter of course; it has to come before a tribunal, called a Court of Probable Cause, and there he has to show that he is absolutely impe- 1509 cunious and that he has a good primâ facie case. It is not enough for the man to believe that he has a grievance; he has to state his case, and in most cases he has to produce signed proofs or precognitions of what his witnesses are going to say. These are carefully examined, and generally the man himself or his solicitor appears. The result is that any possibility of anything in the nature of a wrongful or oppressive or blackmailing action is absolutely excluded. There is no possibility whatever of this process being misused. It was introduced as long ago as 1424 by James I. of Scotland, one of Scotland's very great kings; so great a king, indeed, that I believe he would have caused the hon. Member for Govan (Mr. Neal Maclean) to be a great monarchist. In this beautiful old statute we read these words: Gif there be ony pur creatur for defalte of cunnyng or dispense, that cannocht or may nocht folow his caus, the king for the lufe of God, sal ordane the juge, before quhom the cans sul be determyt, to purway and get a leil and wyse advocate to folow sik pur creaturs caus; and gif sik causes be obtyenit, the arranger sal assyith baith the partie skaithed, and the advocatis coastes and travel; and gif the juge refusis to do the law eavenlie, as is before said, the partie pleanzeand sall have recourse to the king, qua sall see rigourously punished sik juges, that it sall be example till all uthers. That has been the law of Scotland and is the law of Scotland to this day. In England you have no corresponding provisions that are at all as ample and generous. Henry VII., sixty years later, introduced a Bill giving the poor man the right, if he could find a counsel and agent, who on no account must receive any remuneration, to appear for him. Henry VIII. thought that was too generous, and he enacted that the poor man could get these benefits, but if he lost his cause and did not pay his expenses he was liable to be severely punished, and the punishment is said to have been flogging. Of course, the result is that you have in England nothing corresponding to our position, but the English lawyers were very astute and for centuries they got round this provision that there should be no remuneration for the poor man's legal advisers by inventing "Dives Costs." If he got judgment for more than £5 he ceased to be "Lazarus" and became "Dives," and he was in addition allowed to tax his costs against his defeated op- 1510 ponent. That was done till 1885 when it was challenged in the Court of Queen's Bench in England, and it was held to be a blot upon the English Statutes and the English rule. That was affirmed in 1892 in a case in the House of Lords, and from that time onwards both Scottish and English poor litigants have been deprived of their costs. It is, of course, a very great hardship to the poor man who has first fought his case in the Courts of Scotland that he has to find his way up to London, he, or his counsel, or agent, and endeavour to plead his cause and not be awarded the costs which naturally fall to him. I maintain that the Lords themselves, evidently desirous not to make the distinction, and not recognising the distinction which there is between the Scottish and the English law, the ancient Scottish law being maintained, have interpreted the Jurisdiction Act, 1876, which gives them power to regulate the matter of costs, to exclude the Scottish poor litigant from costs which would otherwise be his. While no doubt that is absolutely within their Lordships' discretion, as being judges of their own procedure, still it is, in effect, saying to the poor man or the pauper: You are a pauper, you have been wronged, and the cost of vindicating your wrong has been incurred, but because you are a pauper your opponent shall only pay what he should have paid you to begin with before we compelled him to do so. The cost of getting your due must be borne either by yourself or by some other innocent person, by anyone, in short, but the party through whose fault such cost was incurred, he shall retain your costs as the discount upon wronging a pauper. The costs of vindicating the wrong are a necessary and essential part of the wrong. The difference between the Scottish and English poor litigant is that the English poor litigant owes nothing to his lawyer, if he can get him to act gratuitously, but the Scottish poor litigant is in debt to his solicitor, and if he goes to the House of Lords and recovers a substantial sum, the solicitor is entitled to deduct from the sum recovered the cost which, his client being a poor man, his opponent ought to have paid, the result being that the whole sum the poor man has recovered may be swallowed up in legal expenses which ought to be paid by his opponent. That is the essential difference between the two systems. Therefore, I say that we in Scotland, knowing the sanity and safety 1511 of our poor litigant provision, knowing that it is impossible for anything in the nature of a wrongful action to be raised, wish to re-establish the right of litigants when they come to their King and Parliament, which is surely the place where the poor man, above all, ought to get for himself the maximum of justice—when he appeals to his King and Parliament—to get given that ample justice which that great king, James I., away back in the dark ages, maintained ought to be his, and in respect to which, we trust, His Gracious Majesty in this twentieth century, will deal as kindly and graciously with his poor Scottish people as did his great ancestor in the fifteenth century. Therefore, I ask leave to introduce this Bill.