Clause 2.—(FINANCIAL CONDITIONS OF LEGAL AID.) (Hansard, 31 May 1949)

§ Mr. Woodburn
I beg to move, in page 3, line 12, to leave out from "paid," to the end of line 14.
This is consequential upon an Amendment made in Clause 6 (4) during the Committee stage.

§ The Lord Advocate
I beg to move, in page 3, line 21, at the end, to insert: or of an agreement as to expenses. We provide in the Bill for the case where expenses are recovered as a result of an award by the court. As hon. Members will appreciate, however, actions are sometimes settled out of court, with an arrangement regarding expenses. We seek by this Amendment to bring within the ambit of the Clause any such expenses recovered as a result of an agreement.

§ Mr. Woodburn
I beg to move, in page 3, line 28, at the end, to insert: having regard to all the circumstances, including the means and the conduct in connection with the dispute of all parties. This indicates the circumstances which the court is to consider when deciding the amount, if any, which the unsuccessful assisted litigant has to pay by virtue of an award of expenses.

Lieut.-Commander Hutchison
This is not just a drafting Amendment. It deals with what is really an extremly difficult point, namely, the extent to which an assisted litigant should be exempted from the normal liability of paying the costs in an unsuccessful action in which he is engaged. It so happens that I raised this matter during the Committee stage, as did also the hon. Member for Dumfries (Mr. N. Macpherson), and some other hon. Members. There was a similar Amendment inserted in the English Bill last week and the Debate upon that Amendment was fairly long. A good many hon. and learned Gentlemen took part and expressed a variety of views.
The fact that there should have been this difference of opinion among English lawyers and that the Attorney-General himself should have confessed that This is a most difficult problem."—[OFFICIAL REPORT, 25th May, 1949; Vol. 465, c. 1354.] does not make it easy for us as laymen to decide whether or not the course selected by the Government in putting forward this Amendment is the best one. The Cameron Report has this to say about it in paragraph 32: We recommend that provision should be made to give the court before which the case depends power to modify the award of expenses against an unsuccessful assisted litigant. The court should have before it the litigant's statement of means, as accepted by the certifying Committee. We further recommend that, in no case should the amount of expenses awarded exceed the amount of the litigant's contribution. The court should also have power to make orders for payment of expenses in such cases by such instalments and at such periods, if any, as shall seem proper in the circumstances. 2009 The corresponding report in England, the Rushcliffe Committee, stated in paragraph 172, sub-paragraphs (2) and (3): We recommend that if the assisted litigant is unsuccessful, that any order for payment by him of the costs of the successful party shall be limited to such amount as the Judge may direct having regard to the financial circumstances of the assisted litigant (and for this purpose the Assistance Board will supply a certificate of financial position if so required by the Judge) and any order so made shall only be enforceable in such manner as the Judge may direct. Sub-paragraph (3) goes on to say: That the assisted litigant's household furniture, tools of trade and house shall not be considered as part of his means for this purpose. I feel therefore that to some extent this Amendment is weakening the position of the assisted litigant and adding to his uncertainty as to his financial position should he be unsuccessful in any action. It will therefore make persons doubly cautious before they advance into the uncharted seas of litigation. Although that is quite a good thing in principle, it may very well bear hardly in individual cases.
On the other hand, the alternative suggestion put forward by certain hon. Members in the discussion on the English Bill, that the responsibility of paying all costs might rest with the State is obviously not satisfactory. As the Attorney-General pointed out in the course of the discussion last week, it might lead to extravagance in litigation and in cases being fought out to the bitter end when they could quite well be settled out of court. We therefore feel that, on balance, the Amendment which the Government have put forward is probably the best solution and we shall not oppose it; although at the same time we feel it is to some extent weakening the position of the assisted litigant and adding to his uncertainty.

§ The Lord Advocate
I beg to move, in page 3, line 39, to leave out from "person," to "his," in line 40, and to insert: who has been found liable in expenses. During the Committee stage the hon. Member for Dumfries (Mr. N. Macpherson) raised the question of whether or not it would be possible to carry out the purposes of this Clause because it would be necessary to inquire into means before making an award of expenses. I explained then that the court could always make a 2010 finding of expenses in favour of a litigant and then adjourn the case to have the inquiry into means before actually quantifying the amount of expenses which might be awarded or making any limitation under the normal scale of expenses. In order to make the matter crystal clear, we have introduced this Amendment which I think makes it plain beyond peradventure that the court will have power to adjourn in order to ascertain the question of means.

§ Mr. N. Macpherson
I am obliged to the Lord Advocate for introducing this Amendment. I think that hon. Members on this side of the House consider that it is an improvement in that it makes the matter clear.

§ The Lord Advocate
I beg to move, in page 3, line 42, to leave out "and."
Subsection (5) provides certain exceptions which will be disregarded in taking into account the means of an unsuccessful assisted litigant against whom an award of expenses is to be made. As originally framed, it was intended that the power to prescribe exceptions should extend to the list of articles referred to and should not confine by regulations the diligence which could be executed on those articles. As drafted, the prescribing by regulations referred to the diligence and not to the range of articles. This Amendment is designed to make the prescription refer to the articles and not to the diligence.