§ 11.54 p.m.
§ Mr. Peter Hardy (Bother Valley)
The present arrangements for legal aid have clearly been of benefit to many thousands of our citizens who would otherwise have been unable to secure any degree of justice for themselves. For that reason I have no criticism of the principle which underlies our legal aid system. This has brought very necessary benefit to many people and to not a few lawyers.
However, I am less sure that the arrangements are as satisfactory as the underlying principle. In the last 20 years a number of improvements have been made but none of these has achieved anything like the reasonable flexibility which seems desirable, given that the problems, perhaps severe problems, which face the individual may vary enormously.
I hope that the major case that I bring forward will assist the argument in favour of further improvement and greater flexibility.
The experience of my constituent, Mr. William John Ellis, illustrates the deficiencies in our present system. I consider it a distressing case. Mr. Ellis left school at the age of 15. He is the eldest son of a miner in the village of Sunny-side, near Rotherham. When he left school jobs were not at all abundant, although not so scarce as they have become since. He tried one or two jobs before accepting employment as a window cleaner at the age of 17.
In the second week of his employment he was cleaning windows at Rotherham Town Hall when he sustained terrible injuries from a very bad fall. These injuries included spinal fractures, fractures of his nose, right thigh, both wrists, and both ankles. There were also internal injuries, the effects of which have not yet been surmounted. In addition, his heels and feet were dreadfully damaged. The accident occurred on 28th August 1968. 836 Just before then, his father had sustained a serious back injury in a pit accident.
Bill Ellis was on the danger list in hospital for some weeks and remained in hospital until March 1969. When he left hospital he was wearing callipers on both legs and was in a wheelchair. This young man made a good deal of progress but he also displayed a most commendable determination. He made up his mind that the wheelchair would be discarded at an early stage and that he would walk without it and without callipers. He now does so, although he has experienced great difficulty, and regrettably he has yet to find suitable work. I hope that his perserverance will bring at least the early reward of a job which will not overtax his present mobility.
After the accident, Billy's family discovered that his employer had not taken out adequate insurance cover. It may be felt that this should have been ascertained beforehand, but this sort of suspicion is not generally felt by ordinary folk. I do not think that the Solicitor-General will disagree with that opinion.
In view of this absence of cover and because of a suspicion that proper arrangements for safety appeared to have been omitted, Mr. Ellis' father consulted a firm of solicitors in Sheffield. The necessary procedure for the recovery of damages then commenced, with legal aid being granted. Legal aid was also granted to the employer. The long months of preparation and waiting for litigation slowly passed until the case came before the Sheffield Crown Court on 18th May last year.
At the commencement of the case, counsel for the plaintiff informed the court that the maximum sum which could be raised by the defendant was £750. The judge, Mr. Justice Wrangham, was asked to enter judgment for £750 with no order as to costs. The court was told that as far as the legal aid committee was concerned, it would be perfectly proper to have no order as to costs, although, as counsel said, the committee was regrettably unable to provide any assurance that it would not extract the costs from the amount available. However, the judge was informed that if he expressed a view about the matter, that was something that the committee would take into consideration so far as it felt able to do so.
837 Counsel for the defendant consented to this approach and commented that he was grateful that the court had been able to sit half an hour late so that the matter could be "thoroughly investigated".
Mr. Justice Wrangham then commented upon the settlement. He said that my constituent had sustained a very serious accident and that if the case were proved he might be entitled to considerable damages, but that he would have to he content with £750, that being all the defendant could afford.
The judge then said that counsel for the plaintiff had communicated with the legal aid authorities and that they were in a position to authorise him not to ask for costs from the defendant. He properly said that a successful plaintiff should pay for any costs which had been incurred by the public out of the damages awarded to him, but he went on to say that this was a very exceptional case, and expressed the hope that in view of the exceptional circumstances the legal aid authorities would consider allowing the plaintiff to recover his damages without any substantial contribution to the costs incurred on his behalf.
Mr. Ellis then expected to receive all or the greater part of £750. I understand that he had accepted the advice he had received on this matter. His counsel understood that the legal aid authorities had agreed to allow Mr. Ellis to receive the full, or virtually the full, amount. Some time elapsed, and then my constituent learned that the full costs would be deducted. To his astonishment he found that the costs amounted to £596.52, leaving him with the sum of £153.48.
He was then informed that his best course of action was to approach me, as his Member of Parliament, as I would have the opportunity to request the Lord Chancellor to make an exception in this case and to allow the deduction of the whole or part of the costs to be waived. The Law Society wrote to Mr. Ellis's solicitors on 13th December 1972 and suggested that the matter be taken up with the Lord Chancellor, who is the only person who is able to rule that there should be no charge.
I had not heard of such an arrangement before but, then, I am a layman, 838 constantly reminded of the complexities of the law and sometimes of its rather high level of remuneration. I wrote to the Lord Chancellor immediately. I received a most full and courteous reply, in due course. This very fairly made the point that the deduction of costs was mandatory and that the person who receives legal aid should not be better placed than any other litigant. This means that Mr. Ellis might still have received only £153.48 had he acted from his own resources entirely.
However, it might be right to suggest that had the former employer not been granted legal aid he might have been much more likely to have made a substantial offer at a much earlier and therefore less expensive stage. Thus, the effect of both parties being in receipt of legal aid might have militated against the interests of Mr. Ellis.
In saying that the suggestion that costs could be waived was ill-founded, the noble Lord also said that it wassaddening to dash the false hopes so un fortunately raised".He went on to refer in his letter to the Pearson Commission, the Royal Commission recently set up to consider civil liability which may make recommendations on the subject of injuries, including those received in employment—possibly recommending a compulsory employer liability insurance. That would seem entirely desirable, and one hopes that there will be such a recommendation and that it will be implemented.
That may lead to a happier situation in which the sort of experience which my constituent suffered would be even more infrequently encountered. I believe that such an improvement is essential, for otherwise people might be tempted to take a rather cynical view and say that a few hours' work by members of the hon. and learned Gentleman's profession could be given a greater value than the amount received to compensate for months of pain and years of disability for an ordinary young man from a miner's home, and that sort of comment is being made now in the village of Sunnyside. It may be that such a view would be wrong. However, in this case it is fair to say that Mr. Ellis's experience illustrates a very real need.
839 Unfortunately, one cannot be confident that the need will soon be resolved. When the Prime Minister announced in the House the setting up of the Pearson Commission in reference to the thalidomide cases, he said that the commission could consider any action that Parliament might take in the meanwhile. I interpret that as meaning that the Government could well take whatever action they wish in advance of the Pearson Commissions' report, and I suggest that if they took such action they would be acting wisely.
Following the Prime Minister's announcement, in answer to my right hon. Friend the Leader of the Opposition the right hon. Gentleman said that he thought he had made it plain that there could be no retrospective recommendations and that nothing in the commission would prejudice any action which others might take in a particular case. I believe that that reinforces my own interpretation of the earlier remarks to which I have referred. I believe that something could be done.
In a further answer during the exchanges following that announcement the Prime Minister referred to the Lord Chief Justice's comments on relevant matters in 1965 and again in 1967. It is now 1973—eight years since the first of the comments made by the Lord Chief Justice in 1965. The Pearson Commission may report in 1974. One hopes so. It may be years after that before the formidable legislation to implement whatever recommendations the Pearson Commission makes could complete its passage through Parliament.
In this situation it seems right to suggest that there should be much swifter improvement in our legal aid arrangements so as to provide a greater capacity for flexibility now.
I realise that Billy Ellis himself cannot benefit from any improvements that may be made. He realises that, too. But he said to me the other day that he would feel a good deal better about things if his experience led to others avoiding his own misfortune. That is a most commendable attitude. This young man's bearing and conduct, despite his dreadful injury and disability, justify consideration. I believe that any consideration of his case will lead one to the firm 840 conclusion that the present situation is quite intolerable and that we ought not to have to wait for years, perhaps, for essential progress.
Perhaps I might briefly illustrate the need for flexibility by referring to another constituency case with which I am currently involved. A widow in my constituency believes that the tenant of part of a small field which is her only real resource has taken over a larger part of the land than that which he rents and which is covered by a tenancy agreement. I understand that the tenant has erected buildings on this land without planning permission. The whole affair is astonishing.
However, the widowed lady is unable to defend her interests as she has been refused legal aid. I am told that aid has been refused because her asset, the field, exceeds £1,200 in value. So in order to defend this field she would first have to sell it. That is not a pleasant prospect when the ground itself could be said to be in dispute.
When I wrote to the tenant's solicitor, who, unfortunately, acted for both parties in drawing up the tenancy agreement—which I could describe as rather unsatisfactory—the first reply that I received was, I considered, unacceptable, as it suggested that this was not a matter for my interest. The second letter I received was a little better, but the opinion expressed was that the matter was being properly dealt with. Yet it is known that the lady cannot secure aid and thus cannot at present pursue the case. Meanwhile, I understand that further building has taken place without planning permission.
That is a rather simplified and brief version of a somewhat complicated story, but it also illustrates that the present system of legal aid is imperfect.
This case and the case of Mr. Ellis certainly seem to show an undue rigidity in the arrangements, and this may be most harmful to the individual placed in unusual difficulty or exceptional circumstances. This inflexibility can be most harmful to society as a whole as well as to the individual who may need help.
The improvement need not be very expensive for, as Mr. Justice Wrangham said, the case of Mr. Ellis is very exceptional. Be that as it may, improvements 841 that will provide a little more flexibility in our legal aid arrangements seem to be urgently desirable.
§ 12.8 a.m.
§ The Solicitor-General (Sir Michael Havers)
The whole House will be grateful to the hon. Member for Rother Valley (Mr. Hardy) for raising this problem—or these problems, as they turn out to be. These problems are not unknown to those concerned with the administration of legal aid in the courts. I am also grateful to the hon. Member for his courtesy in giving me a great deal of notice of the points that he would be raising tonight.
It would be of no help to Mr. Ellis if I told the House that our system at present says to a plaintiff that he must take the defendant as he finds him. That means that if one has an uninsured defendant, or an uninsured employer, as was the case here, all that one can hope to recover from him, if one succeeds in one's action against him, is what he is worth in his own right, without the benefit of insurance. Usually, and fortunately, employers are covered by insurance, but too many small employers, particularly in trades such as window cleaning, are prepared to take the risk because they do not want the burden of the premiums.
This happens in a wider sphere. It happens, for example, with dangerous trees which may fall and hit pedestrians and motor cars when the occupier of the land on which the tree stood is not insured. It may happen when someone is injured by a cyclist, because the cyclist is usually not insured.
Some years ago, when I was living in a flat on the fourth floor in Westbourne Terrace, my eldest son, who was only 5 at the time, suddenly developed a tendency to throw his Dinky toys out of the window. It occurred to me that if one of our top surgeons happened to be walking down Westbourne Terrace and had his skull fractured by a Dinky toy the claim against me could go into many thousands of pounds. I managed to get cover at a very cheap price, if I had not been covered and there had been a claim for £50,000 that surgeon would have had to have taken me as he found me in those days—and probably still 842 now—quite unable to satisfy any demand for that amount of money.
In the case of Mr. Ellis it was agreed on all sides that the agreed judgment for £750 was in an ordinary sense totally inadequate. But it was the sum that all sides agreed, and to which the judge assented, a sum which was the maximum which could be found from that employer. That being the case, it was a pointless exercise to add to that sum any additional figure by way of costs against him, because it would have been a valueless order. The Law Society was telephoned and properly asked whether, in the circumstances, it agreed that there should be no request for an order for costs. The Law Society agreed.
Counsel may well have understood that the legal aid authorities would allow Mr. Ellis to take the whole sum. As I understand it from the inquiries that I have made, what really happened was that the secretary was not prepared to say that he would not consider it at all, because it was about to come before the judge. In reality the judge, counsel and the solicitors should have been in no doubt about the position. The position has been clear for some time and it follows the Act itself, which makes it mandatory in circumstances such as these that when there is an outstanding balance due to the Legal Aid Fund in respect of costs incurred by the plaintiff in successfully obtaining his judgment, that sum is a first charge upon any property that he recovers, and this has been made clear a number of times and was repeated in 1959. It particularly applies where it is suggested that counsel for parties to a settlement have sought and obtained the approval of the judge to the settlement, subject to a recommendation by the judge that those responsible should consider refraining from enforcing a statutory charge.
The practice note to the Bar states:The Bar Council have now been informed that as the statute creating the charge provides no exceptions, The Law Society cannot obtain any waiver of the charge in future cases.This is based upon the Act and upon a case which was tried in the Court of Appeal in 1960 in which the then Master of the Rolls, Lord Evershed said:By the statute, the Society,"—843 that is, the Law Society—which is responsible to account to Parliament for the administration of the fund, has a first charge on any property recovered in an action. In this case it would be a charge on the sum of damages. So far as I can see, the Society, in execution of its public duty, would be bound to enforce the charge: otherwise the amount concerned would fall upon the taxpayers generally.That has always been the view of Section 3 of the Legal Aid and Advice Act 1949.
It is unfortunate that in the case of Mr. Ellis, who is a layman and could not be expected to appreciate the position, the solicitor, counsel and, indeed, the learned judge all appear to have overlooked the position. In fact, the £750 had been agreed before the telephone call to the Law Society, so in reality his position was in no way diminished.
I should like to make it clear that the £750 that Mr. Ellis recovered was a figure agreed simply because that was all that the defendant could find. Thereafter a large amount was deducted in respect of his costs because the Law Society was bound to do it. Under the Act, it had no alternative. The matter has been under consideration for some time. But there is no question of my noble Friend the Lord Chancellor being able to waive the amount.
I hope that the hon. Gentleman will make clear the position on costs to his constituent, whose feelings I can so readily appreciate and sympathise with. The sum awarded in costs does not just go to the lawyers. In a case involving serious injuries, such as Mr. Ellis suffered, there may well also be a question of liability. I know little about the facts, but I presume that a ladder broke, or something of that kind. In his case there would have been witnesses, probably experts who examined the ladder, and certainly several doctors, who would have had to advise the judge as to the extent of the injuries, which were very grave, if the case had been contested, and their fees would have had to be paid. All those figures, which come to a huge amount in proportion to the rest, would have been included in the total. I should not like it to be left in the minds of anyone who listens to the debate, of the hon. Member, who has behaved so reasonably throughout, or of his constituent, 844 that it was simply money all going into the lawyer's pockets. I do not know the exact details, but I suspect, having read the judgment and what happened, that quite a small percentage of the total sum went to the lawyers.
The problem is the basic problem of the whole concept of legal aid. What has always been intended since 1949 in cases in which a litigant is unable to fund his own action is that he should be put into exactly the same position as someone who could pay. If the costs incurred in a tragic case of this kind, with an uninsured defendant, were waived, so that the taxpayer paid them, that would mean putting the legal aid plaintiff into a better position than someone who did not have the benefit of legal aid.
The idea has always been that it is unjust that such a person, by reason of his limited means, cannot ordinarily bring proceedings. Parliament has said "We must put him into the same position as someone who has funds, but we cannot put him into a better position." It is well known that tragic cases are inclined to make bad law. If such a person is put into a special position he is given a special advantage over those who pay their own way.
The matter has exercised all those concerned with legal aid ever since the 1949 Act. But every time it is examined, every time these hard cases are considered, with great sympathy, one returns to the position where one says "If we do it that way, it will mean that he has been given an advantage over and above the person who would ordinarily pay his own way."
That has been the concept and philosophy behind this case. It does not mean that there is a hard approach or that anybody lacks sympathy for Mr. Ellis, who clearly suffered grievous injuries, through no fault of his own, as a result of an employer not taking the elementary and necessary precaution of insuring himself.
I am grateful to the hon. Gentleman for giving me some warning of the second case which he raised, although not enough, I am afraid, to be able to give him an answer, save to say this. The account given to the House tonight appears to disclose a situation which will 845 give rise to anxiety to anybody who hears it. The best that I can say is that I have listened with interest and anxiety to what has been said. The case certainly requires investigation, and I assure the hon. Gentleman that the facts will be drawn to the attention of my noble 846 and learned Friend the Lord Chancellor at the earliest possible moment.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-one minutes past Twelve o'clock.