POOR LITIGANTS EXPENSES (SCOTLAND) BILL. (Hansard, 18 June 1920)

§ Mr. MACQUISTEN
I beg to move, "That the Bill be now read the third time.
I have already explained this Bill on the second reading. The Bill has been through the Scottish Committee, and with one slight alteration in the title comes before us now. The purpose of the Bill is pretty well explained in the one clause of which it consists. Reference to the schedule shows that all that we propose has always been the law of Scotland. By the law of Scotland a man who is poor has always had a certain privilege when he goes to the Law Courts. He does not get there as a matter of right. He has first to go to a preliminary court called a court of probable cause. There he has to produce evidence that is primâ facie in the right. That court consists of counsel and solicitor.
They have to make a scrutiny of the man's case to see if he has got a good primâ facie case. If he succeeds in passing that court then he gets credit for his court fees and is entitled to commandeer the service of counsel and agent who are appointed by the different Faculties, so many of them for the year. He proceeds to fight his case to the end, and on getting judgment is allowed to tax, his costs against his defeated opponent. This is only just and equitable.
Costs always follow, or should follow damages, and a man who has wronged another ought certainly to make good both to the victor, because if a different result had followed, the loser could not have paid. It may be said that this is a hardship, but a man against whom the damages may be cast is always protected by the existence of the preliminary investigation which finds whether or not there is a primâ facie case. This, I say, has been the law of Scotland since 1424. It was the law of appeals to the Lords up to comparatively recently, and I believe it is even now Since 1892 however, they have been treating Scottish pauper appeals as if they were English pauper 1634 appeals. The English law for the pauper is entirely different. The poor litigant—unless the law has been altered by recent legislation—has no right to commandeer counsel free, and in the event of his succeeding, in his case no costs of any kind are recoverable. The law got round this anomalous state of affairs for many years by having what they call the doctrine of Dives costs. That is to say, that if the poor litigant won his case and the verdict was for more than £5 he ceased to be Lazarus and became Dives. He ceased to be a pauper and was allowed to tax his costs against his opponents In 1885 a decision was given which made a change in the English law. It was held to be a fraud upon the statute of Henry VII. to give costs to a pauper. That statute gave the poor man the privileges of the court but expressly withheld expenses. This was amended by Henry VIII., who said that the poor man if he did not win his case was liable to be severely punished for engaging in the action; and that punishment is said to have been whipping.
Scottish law has been much more humane and practical. Unfortunately in 1892 this law was altered by a rule, proceeding on a decision, and it has been felt by the Scotch since that this was a considerable hardship, and that they were entitled to have in the Supreme Court of Scotland, which is the House of Lords, the same privilege extended to Scottish litigants as in the Scottish courts. No hardship is involved upon anyone because the House of Lords is completely protected from frivolous actions. They have the Appeal Committee which has to be satisfied as to the result of any invstigation in the courts below. When the case comes to the House of Lords the litigant sues in forma pauperis and that again comes before the Appeal Committee, and another investigation can be made into the circumstances, which includes an inquiry into the merits of the case. The solicitor or the litigant himself appear before the Appeal Committee, and complete protection is afforded against those who may be engaged in the litigation against anything in the nature of oppressive action. The difficulty is this: That unless the Bill is passed the poor Scottish litigant will have the greatest possible difficulty in finding anybody to represent him. There is no power over English 1635 counsel and no claim upon Scottish counsel to compel them to act in the Lords, unless he finds his expenses, the peculiar hardship is this: whereas the English pauper litigant in winning his case legally owes nothing whatever to his counsel or agent, because it is expressly provided by English law that nothing can be taken, while a Scotch pauper does owe the expenses to his counsel and agent. The result of that is that he is obliged to make arrangements with his Scottish counsel and assent that some portion of the damages which are recoverable shall be applied to costs. The consequence is that he is put in a very unfair position compared with the English pauper, who gets his damages net That is a state of affairs that should not be allowed to exist
This Bill commended itself practically unanimously to the Scottish Grand Committee. I feel that this is entirely consonant with modern principles of treatment of the poor man who has been landed in poverty which may have been caused by the very man whom he is suing. and whom he has brought into the Law Courts. I think this is consistent with our modern ideas of justice, and it is a principle which was introduced by James I., one of our famous Scotch kings, and perhaps the greatest of our Scotch poets Away back in what we call the Dark Ages this monarch had it in his mind to frame a measure so just and equitable. It makes one proud of our old Scotch kings that he should. I trust the British Parliament will not be behind in insisting on this measure of justice to the very poor I feel that this is entirely consonant with modern principles of treatment of the man who has been landed in litigation, which may have been caused by the very man whom he is suing, and whom he has brought into the Law Courts. I think this is consistent with our modern ideas of justice, and it is a principle which was introduced by James I., one of our famous Scotch kings, and perhaps the greatest of our Scotch poets. Away back in the Dark Ages this monarch had it in his mind that a measure of this kind was just and equitable, and this fact makes me proud of our old Scotch kings, and I trust the British Parliament will not be behind On considering this question of justice to the poor.

§ Sir F. BANBURY
The hon. and learned Member who has just sat down 1636 has given us a very clear explanation of a Bill which is very difficult to understand, and I do not know that the House has clearly understood it. I think I have, because the hon. and learned Member himself was kind enough to lend me a very interesting pamphlet upon the Bill, and I think I understand it. As far as my views go, I think every man is worthy of his hire, and the learned counsel who take up these cases ought to be paid. It seems to me that the real object of this Bill is to secure fees for counsel.

§ Mr. MACQUISTEN
The point is that counsel are paid their fees, but they take them from the pauper, whereas the fees ought to be taken from the man who has caused the injustice.

§ Sir F. BANBURY
I really do not understand how the people will be able to get these fees from paupers. The hon. and learned Member referred to the Dark Ages, and he said that a certain statute was passed, and it was altered in Scotland in 1892 in order to assimilate the Scotch law with the English law. Now the hon. and learned Gentleman wants to alter the law passed in 1892 and to return to the Dark Ages. I have always said in this House that I have a very great preference for our old customs, and in many cases they are superior to the modern customs, but I do not want to go back fourteen hundred years, which would be the result of passing this Bill. I have with some labour managed to understand this Measure, and I thought it only right that I should inform the House what is the real object of this Bill.