§ Order for Second Reading read.
§ 11.20 a.m.
§ Mr. Arthur Bottomley (Middlesbrough)
I beg to move, That the Bill be now read a Second time.
Today is St. Valentine's Day, and, according to ancient custom, it was on this day that young people drew lots for lovers. A person drawn in such a ballot was called a valentine and was often given an expensive present, more often than not a pair of gloves. I hope that all involved in drawing lots for valentines today will be as successful as I have been in drawing the opportunity to present this Bill.
I hope that the Bill will have a Second Reading and stand a good prospect of changing a small but significant corner of the law. It follows precisely the lines of the Bill introduced just over a year ago by the hon. Member for Shoreham (Mr. Luce). He did a great deal of preliminary work on the Bill, from which I have benefited, and I should like to thank him. Unfortunately for him, the then leader of his party chose to seek a General Election which took place on the day before the Bill was due for a Second Reading. It was thus lost, but has now been revived.
The Consumers' Association, publishers of Which?, has encouraged me to promote the Bill. I should like to thank David Tench, the association's legal adviser, for all his help. The Bill deals with the problem that confronts a person who seeks justice in a court of law without being represented by a lawyer—a person, that is, who seeks justice in a civil court, who is perhaps trying to obtain payment of money owing to him either by debt or in compensation for some wrong suffered, or perhaps trying to defend himself against a claim brought against him which he disputes. The Bill has no application to criminal cases, where the situation is quite different.
The purpose of the Bill is not to undermine the professional activities of the legal profession, nor to threaten their 787 livelihoods. I am told that many solicitors find that dealing with small claims is wholly uneconomic. The professional fees earned from handling such cases could be disproportionate to the amount of work involved. As a result, small claims in the county court and in corresponding courts in Scotland and Northern Ireland are not a good proposition for the legal profession, and anything that Parliament can do to relieve lawyers of this class of work would probably be welcome to the majority of them.
Furthermore, legal aid is not in practice available in cases in which no more than £100 is claimed, no matter how small the means of the person concerned. For this and no doubt other reasons it has been Government policy since 1973 to promote the idea of small claims being taken by people themselves, without lawyers.
The right hon. and learned Member for Surrey, East (Sir G. Howe), when he was Minister for Trade and Consumer Affairs, was largely responsible for the introduction of the arbitration scheme for small claims in the county court which came into effect on 1st October 1973. One of the main purposes of that initiative was to enable people with genuine claims as consumers who had failed to obtain redress by any other means to bring cases in the county court without legal representation.
Incidentally, a person who brings a case without having a solicitor to act for him is called in England and Wales a litigant in person—hence the title of the Bill. In Scotland he is called a party litigant.
Hon. Members will be interested to know how the scheme is progressing. The Attorney-General, in answer to a question by the originator of the scheme, the right hon. and learned Member for Surrey, East, said that in the first 13 months of its operation 5,123 cases had been referred to arbitration. This is an indication of considerable success. Of that number, over half were not legally represented, so we may deduce that the litigant in person has come to stay and is someone to be reckoned with.
We must bear in mind also that there should be added to the considerable figure of just over 5,000 cases actually referred to arbitration a much higher figure for those people who brought cases in the county court which were settled 788 after legal proceedings had begun but before they had been referred to arbitration.
Then there is the High Court. It is by no means unknown for someone to pursue justice unaided, or, as some would say, unhampered, by retaining solicitors and counsel in the High Court. Many litigants in person in the High Court are sensible, responsible and intelligent people who have decided to conduct their own cases for financial reasons. The limitations of the legal aid scheme are such that they cannot afford the costs involved in paying for their own lawyers, not to mention the risk of paying the costs of the other side, if they were to lose. It can be seen that considerable groups of people for one reason or another find that the only way in which they can seek justice is by a "do-it-yourself" method, or, to put it more formally, to sue as litigants in person.
I now come to the problems of litigants in person. There are several. The first, of course, is that they are unfamiliar with court procedure. The Government have done something to assist them in this regard. The Lord Chancellor's Department has produced an admirable booklet called "Small Claims in the County Court", available free to anyone minded to bring a case in the county court, which can be obtained at any court office and at most citizens' advice bureaux and other advice centres. This is a praiseworthy publication and has helped many a litigant in person to see his way through the legal complexities which constitute court procedure. The Consumers' Association has also produced a publication called "How to Sue in the County Court", which goes into the technicalities in more detail and provides in a vivid and readable way a thorough guide to all the complexities of actual court cases which are contested from start to finish.
Another problem which may confront the litigant in person is the possibility that his opponent may simply not have the means to pay what the court orders. In this regard the litigant in person is in no worse position than his colleague who uses a solicitor, but something could usefully be done to bring it home to potential litigants in person that if the proposed defendant has no means to pay, has gone bankrupt or into liquidation or is missing there 789 is no point whatsoever in taking the matter to court. One cannot, as the saying goes, get blood out of a stone.
But the particular problem of the litigant in person which I wish to highlight, and which it is the purpose of my Bill to remedy, concerns the question of costs. At its simplest, the question of legal costs works like this. If a solicitor represents someone, that person has to pay the solicitor. If, so represented, he wins his case, and is awarded costs against the other side, these costs cover to a large extent the amount he has to pay his solicitor, but they do not as a rule cover the full costs the solicitor charges him. Because of the strict rules governing what may be recovered under an order for costs—these rules are very complex—he would in most cases recover from the other side a substantial contribution, but no more than that, to the amount he would have to pay his solicitor. He would thus be out of pocket to some extent over the matter, even though he had won his case.
But a litigant in person would fare much worse than this. If a litigant in person brought a case and won it, and were awarded costs against the losing party, he could recover only his bare out-of-pocket expenses, and no more. He could recover the court fee for bringing the case, for example, but nothing for the time and effort devoted to preparing the case, taking it through, and eventually winning it. Even if he were compelled to take time off from work to attend to matters concerned with the case, he could not recover anything for it under the award of costs he obtained. That puts the litigant in person at a serious disadvantage compared with the represented litigant.
I will describe to the House a real life example. I have here a letter from Mr. Adams, of Greenford, Middlesex, who bought a colour television set from Trident Discount. The set turned out to be faulty. Despite several attempts to get it put right, the set still did not work properly. The company refused to do anything about it, so Mr. Adams, after advice from his local citizens' advice bureau, himself issued a summons in the county court. That produced immediate results. The company offered him another set, which he accepted, in lieu of his money 790 back. The company also paid the court fee of £6.75 which Mr. Adams had paid to bring the case.
That was a comparatively happy end to an unhappy story, except that Mr. Adams added wistfully at the end of his letter which described his experienceI lost two days from work doing so.Why should he lose two days' pay in pursuit of justice and get nothing for it? My Bill rectifies that injustice and allows to be included in an award of costs made in favour of the litigant in person against a person who loses a court case—a sum in respect of work done by the litigant in person in relation to the proceedings.That is the nub of the matter.
The Bill also specifically allows "expenses incurred". That is to make clear that expenses, too, may be recovered as part of an award of costs. As I have already explained, out-of-pocket expenses are to a certain—or, rather, to an uncertain—extent recoverable under the present rules. Court fees and witnesses' expenses on the scale laid down are certainly recoverable. Beyond that, the practice seems to vary from court to court. For instance, some county courts interpret the present vague rules as best they can, and disallow such items as travelling expenses which a litigant in person incurs in going to the court office from his home and back again to issue the summons, to attend the pretrial review or to interview witnesses. Such expenses, if incurred by a solicitor acting for a litigant, are recoverable as part of an award of costs. In all justice they should also be recoverable by a litigant in person in comparable circumstances, and they will be if my Bill goes through.
In essence, the Bill sets out to put the litigant in person who wins his case in a comparable position vis-à-vis costs to his fellow litigant who is represented by a solicitor. Logically and fairly, the same principles should apply to each. They do not at present, and the Bill makes sure that they do. That is true not only of expenses but also of the work done by the litigant.
I have referred to the virtues of the new arbitration scheme in the county court. One aspect of that is that the litigant in person is not as a rule at risk in paying the legal costs of the other side if he loses his case, provided the amount he is claiming is not more than £75.
791 That brings me to something of a paradox in relation to the reform the Bill will bring about. The "no costs" rule in under-£75 cases is not in question—it has been generally approved—and, indeed, the only matter seriously under consideration at the moment is whether the level should be raised from £75 to, say, £100. But the existence of the "no costs" rule gives rise to a strange result in relation to costs awarded under the principle introduced by this Bill.
We have to accept, I think, that no costs can be awarded under this Bill either where the amount at stake in the case is not more than £75, for if a litigant with a solicitor cannot claim under an award of costs the fees he pays his solicitor for dealing with the small claims case, by the same token neither should the litigant in person be able to claim for such costs where he does the work himself. Otherwise the litigant in person would be in a better position than a litigant who is represented by a solicitor. That is not the intention.
As I have emphasised, the object of the Bill is to put the litigant in person in a comparable position with that of a represented litigant—neither better, nor worse. It is, of course, a significant limitation on the application of the Bill that it should be excluded, in effect, from cases involving less than £75, and that is, in one way, a pity. But the advantage on balance of having a "no costs" rule in under-£75 cases is considerable, and outweighs the principle underlying the Bill.
Indeed, if the costs rule introduced by the Bill were applied to small claims, it might put the litigant in a better position than a represented litigant. It might also act as a disincentive to a person with a genuine claim seeking justice through the county court small claims procedure, out of fear that if he lost he would have to pay costs to a litigant in person on the other side. That could be a very off-putting prospect.
We accept, therefore, the continuation of the "no costs" rule in small claims to cover both solicitors' and litigants in persons' costs. The result is that the main impact of the Bill will be in relation to what I might call the middle range of simple cases—those where over £75 is in issue but the case is still comparatively simple and does not involve sufficient 792 money to warrant instructing a solicitor to handle it. That covers a considerable volume of cases.
It might also be said that the new principle introduced by the Bill could be seen as a consolation to the litigant in person with a claim exceeding £75. Although he will be outside the small claims limit of £75, and so will be at risk as to the other side's costs if he loses his case, at least under the Bill he will be able to recover his own costs if he wins.
The Lord Chancellor and his Department have afforded me every encouragement and assistance in consultations about the drafting of the Bill, and I should like to express my gratitude to them for this.
There is one aspect of the Bill on which there appears to be a measure of disagreement between myself and the Government. It concerns the question whether the principle of the Bill ought to be applied to leisure time devoted to the preparation of his case by a litigant in person. It is agreed that where he is obliged to take time off work, and so loses income, in order to attend the court, say, for the purposes of the hearing of the pre-trial review, the Bill should apply to his loss of earnings. But what if he spends a good deal of his own leisure time in the evenings and at weekends in preparing documents, such as the particulars of claim and in corresponding with the solicitors on the other side, seeing witnesses and matters of that sort? There is no doubt that the fees paid to a solicitor for doing these jobs can be recovered under a costs award. Why, then, should they not be recoverable also when the identical work is done by the litigant in person?
§ Mr. Emlyn Hooson (Montgomery)
As one of the sponsors of the Bill, I regard that as the nub of the issue on which there might be disagreement. The worry that has to be overcome is the longwinded litigant who spends hours on the case because he becomes absorbed in it. There must be a limit. That surely must be dealt with by rules. Does the right hon. Gentleman suggest that a litigant should be entitled to recover his costs for all the time he spends in preparation of the case, however long it is?
§ Mr. Bottomley
I am told that the court has discretion how it should proceed. If a solicitor is able to get expenses 793 of that kind, why should not a litigant in person be able to get them? Some lawyers can be long-winded. I am confident that it will not be beyond the wit of the Lord Chancellor and his staff to devise principles for assessing what should be allowed for such matters to compensate a successful litigant in person, and that taxing masters and county court registrars—for it is they who handle such questions—will find it perfectly possible to quantify what should be allowed in individual cases.
I should, therefore, prefer to see the principle of the Bill applied to leisure-time work done by a litigant in person, but I fear that the Government may consider that that goes too far. The hon. and learned Member for Montgomery (Mr. Hooson), who is leading for the Liberals and is supporting the Bill, has given credence to that, so I hope that the Government will be more sympathetic than I am led to believe they are.
I should explain that the exact demarcation line on that and other questions will be precisely determined by the award costs committee and the Lord Chancellor by rules to be made under the County Courts Act.
The Bill speaks in general terms of allowing a sum for work done by the litigant in person. Strictly speaking, therefore, it is not a matter for the House to decide whether what I might call leisure time work is to be in or out. But I am sure that the rules committee and the Lord Chancellor would be mindful of any views on the subject that might be expressed by hon. Members in the debate. I hope that some hon. Members at least will express a contrary view to that of the hon. and learned Member for Montgomery, so that my noble and learned Friend will see that there is more support for what the Bill proposes in this respect than my one lone voice.
I make it clear that the Bill is justified even if it is to be applied in the more limited way to loss of earnings only. This undoubtedly happens in many cases and gives the litigant in person a sense of injustice which irks him more than not being allowed any compensating sum for his leisure-time efforts.
That is as much as needs to be said by me in moving the Second Reading. I 794 emphasise that it is a measure not to encourage litigation but to give a fair deal to a person who chooses to seek justice but cannot afford, or for some reason decides to do without, the services of a solicitor. He does not ask to be paid what a solicitor would be paid, but he does ask to be put in a comparable position and not actually be worse off. That will be the situation if the Bill is passed.
In conclusion, let me mention one point which may interest the House. A normal litigant in person is currently denied the right to reimbursement for his loss of earnings resulting from having to take time off work to fight his case. But there is one exception to this rule. If the litigant in person happens to be a solicitor, he, even though he handles his own case personally, is allowed to charge against his losing opponent his professional fees for handling his own case. It is a distinction of the most invidious and indefensible kind.
If this Bill does nothing more than to put the ordinary citizen on a par with a solicitor in the matter of costs when acting as a litigant in person, it will have done a useful service. On that basis alone, it deserves support. But, in fact, as I have explained, it has a wider purpose also. I hope, therefore, that both sides of the House will be able to support the Bill and give it a Second Reading today.
§ 11.43 a.m.
§ Mr. Richard Luce (Shoreham)
St. Valentine's Day is as good a day as any to form a mutual admiration society, as I hope will be the case on this Bill. It is my enjoyable task to congratulate the right hon. Member for Middlesbrough (Mr. Bottomley) on introducing the Bill. He was, in his characteristically generous way, very kind to me in saying that I did a lot of work on the subject when I introduced the Bill originally—it was lost, sadly, in February 1974. But the right hon. Gentleman has now reintroduced it and I am delighted to be a sponsor on this occasion and to give him my congratulations.
I also thank my hon. and learned Friend the Member for Wimbledon (Sir M. Havers) for his encouraging support in the days when he was Solicitor-General. I am grateful, too, to the Consumers' Association, and particularly to Mr. 795 Tench, who has done so much work on the subject.
One improvement that I notice is that the Bill applies to Scotland and Northern Ireland as well, whereas the original Bill did not. I strongly welcome that improvement.
As the right hon. Gentleman has said, the purpose of the Bill is to enable a successful litigant in person to recover from the other side appropriate sums by way of costs for the work done—that is to say, the appropriate sums in order to enable him to act as his own advocate. This, of course, is in addition to the existing entitlement that a litigant in person has to recover from the other side certain costs, to which the right hon. Gentleman has referred, including disbursements of one kind and another, out-of-pocket expenses, and so on.
Why does the injustice, which the Bill seeks to rectify, exist? In its booklet, Justice, writing about litigants in person, says:It has always been regarded as the inherent and inalienable right of any citizen to present his own case in court.If that is so, and there is growing evidence that a larger number of people are becoming litigants in person, surely they must have the right to recover costs, if they succeed, for the work they have put into the case. That is surely an elementary act of justice.
The injustice involved was highlighted by the case of Buckland v. Watts in 1969. Mr. Watts put in a claim for work he had done. It was disallowed and the Taxing Master of the High Court said:A litigant in person is entitled only to his actual disbursements directly concerned with the case but not any allowance for loss of time in attending the case.That seems to be the nub of the problem.
Certain factors are worth consideration in supporting the Bill. The first was made by the right hon. Gentleman—that a litigant in person could save substantial fees to solicitors or lawyers. As he said, however, even if that person, employing a lawyer, succeeds in his own case, he still may be disallowed certain lawyers' costs, because it is at the discretion of the courts to determine whether such costs should be allowed. I stand to be corrected, but I understand that in the 796 majority of cases the successful represented litigant finds that he has to pay extra costs even when he wins the case.
The second factor concerns an injustice which should certainly be highlighted. It is a strange one. A solicitor, when he acts as his own litigant in person, is entitled under the existing law to claim the equivalent of professional fees for the work done. If that is the case for a solicitor working as a litigant in person, why on earth should not the lay litigant in person be allowed costs for the work he has done? There is an injustice there which must be rectified.
The third consideration is that the Bill must be seen against the background of a general climate in which people are being encouraged, in small claims at least, to take their own cases to arbitration. As the right hon. Gentleman pointed out, we have the new county court rules of 1973, introduced by my right hon. and learned Friend the Member for Surrey, East (Sir G. Howe), the new arbitration service, and the improved facilities for dealing with small claims, at least up to the level of £75, in county courts. The whole purpose was to encourage both sides to settle claims without legal representation.
I therefore entirely agree with the right hon. Gentleman when he says that we should not, as a result of the Bill, put a litigant in person at an advantage over other people, and that if the solicitor's costs are not going to be recovered—as I understand to be the rule, except in certain exceptional cases—there should not be special advantage under these county court rules to the litigant in person. That having been said, the Bill follows in a natural way from the general encouragement to people to settle their claims on their own.
The fourth reason for supporting the Bill is the growing improvement in the advisory services available to people if they wish to take up their own cases. The Lord Chancellor's document "How to Sue and Defend Actions without a Solicitor" gives strong guidance to any individual who wishes to pursue such a course. The Consumers' Association's pamphlet "How to Sue in the County Court" and various other documents give legal advice about such matters as buying houses, and problems faced by 797 motorists. They also serve to highlight how complex it can be for an individual to take up his own case in court.
That leads me to my fifth point. As the pursuing of one's own case in court can be so complex, the procedure can be costly for the litigant in person. Why should such a litigant be penalised, as he is under the present law, for all the work and expense that he has to incur?
Perhaps there should be one word of warning in the introduction of the Bill. I believe that this measure should not be too much of a green light for everyone to suddenly rush forward, saying to themselves "This solves all my problems, I can now discard the use of lawyers. I can now go to court quite happily and settle my own problems. I shall not have to pay lawyers' fees." It could be dangerous if too much of a green light is shown to the British public.
We have only to look through the documents to which I have referred to realise how complicated some cases can be. To be a litigant in person requires not only stamina but intelligence and skill. For anyone who does not have those qualities—that might well include myself—it could be a dangerous course to pursue. There should be a word of warning about that.
People should also be reminded that the Bill applies only to successful litigants in person. I hope that lawyers will welcome the Bill. With their increasing work load I would have thought that they would welcome a measure that would enable litigants in person to deal with claims involving comparatively small sums. If they were relieved of that burden they would be able to deal with bigger and more complicated issues.
The Government should give some attention to the position of registrars. I am no great expert on these matters, but I believe that their work load has increased considerably over the years and it is conceivable that it might be increased as a result of the Bill. I hope that the Government will give some thought to the burden that they will have to carry and that they will give consideration to such matters as registrars' conditions.
The right hon. Gentleman raised an important matter when he referred to 798 the rules of court, and particularly the issue of leisure time. There is the problem of the interpretation of costs. It will be for the rules committee to determine the matter. I believe that it would be right and proper for right hon. and hon. Members to express their views. We must assume that the Rules Committee will agree that the costs involved for the ordinary work of preparing a case, including time off work for all the preparation that it is necessary for a litigant in person to undertake—the pre-trial work, the preparing of particulars of claim, the issuing of proceedings, the discovery of documents and the interviewing of witnesses—will be allowable. However, as the right hon. Gentleman has said, we may come up against the difficulty of the leisure time issue. I hope that the Rules Committee will explore the matter carefully.
I would not jump with great enthusiasm into saying that there should be vast payments to litigants in person for the loss of leisure time, as that might make entering into suing in court a profitable business, but at least consideration might be given to some sort of notional payment for work done over the weekend. One knows from all the evidence that has been collected that the amount of work required can be enormous.
Once again, I congratulate the right hon. Gentleman. If, as I believe it will, the Bill passes through the House, it will help to do two things. First, it will help to rectify an injustice that now exists and, secondly, it will help to make our courts even more accessible than in the past.
§ 11.57 a.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
The hon. Member for Shoreham (Mr. Luce) is apparently afraid that if the Bill passes through the House there will be a rush of litigants who may attack the preserves of the lawyers. I do not think that he need fear about that.
A Private Member's Bill gives a Member an opportunity to introduce some small but necessary reform. The cost of litigation is often the subject of considerable criticism and there are a number of reforms which could well be made. Laymen have been extremely critical of the 799 costs of litigation. On former occasions I have expressed the view that even in criminal cases costs should follow the event. I believe that costs should be awarded as of right to persons acquitted of crimes unless there is some special reason for their being deprived of such costs. I also hold the view that actions for damages for libel or slander should not be excluded from the granting of legal aid. A poor person may be libelled grievously and because of lack of means he may be unable to bring an action.
Legal aid is granted only after consideration of whether there are grounds upon which an action can be brought. My right hon. Friend has seized the opportunity to introduce a measure which will assist the litigant in person. When a person desires to bring a civil claim and is represented, the danger that he may have to pay a considerable sum by way of costs may well deter him. All lawyers in the House know that a lawyer will often advise a client in a doubtful case—and so many cases are doubtful—that it is better to compromise and settle, and sometimes even not to bring the action, rather than to incur the risk of having to pay heavy legal costs. My right hon. Friend the Member for Middlesbrough (Mr. Bottomley) has referred to it, but it is worth emphasising what is the position of a successful litigant represented by a lawyer who obtains an order for costs. In the ordinary way he receives what are called "party and party" costs, which can be taxed. However, he will clearly be out of pocket, bearing in mind the costs that have actually been incurred.
In some cases a special order will be made and the litigant will receive what are called "solicitor and client" costs, but even so he may well be out of pocket. I hope that attention will be drawn to possible injustices in that direction and that perhaps some right-minded and thinking Member, such as my right hon. Friend the Member for Middlesbrough, will bring in a Bill to deal with such matters.
The litigant in person, as my right hon. Friend has pointed out, is in a very much worse position because, as a rule, the costs that he receives if he is successful in obtaining an order for costs amount to a witness fee for the costs of 800 the witness attending the court and possibly some expenses and the court fee that he has paid. Even in a proper case nothing is given to him for expenses incurred and for the work he has done in bringing proceedings. This work may be considerable.
In the Bill my right hon. Friend draws attention to what is clearly an unfair procedure and seeks to remedy it. I am not at all disturbed by the interjection of the hon. and learned Member for Montgomery. The court can well deal in its discretion with any difficulty that may arise. We have the provision that there are to be rules of court which may well deal with this. I do not see why any court, in a proper case, cannot consider all the circumstances and award the correct amount of costs to cover the work that has been done and the expenses incurred.
I congratulate my right hon. Friend on his effort and have great pleasure in supporting him. I hope that the Bill will receive everyone's support. It is a typical example of what a Private Member's Bill can do in remedying a defect in our legal procedure. I hope that something of a similar kind can be done in future to deal with the other matters to which I referred earlier.
§ 12.3 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I add my congratulations to the right hon. Member for Middlesbrough (Mr. Bottomley) on introducing this Bill. I congratulate him and the hon. Member for Shoreham (Mr. Luce) on the work that they have carried out in the Bill's preparation. They have set out very well all the arguments in favour of the Bill. As a member of the legal profession, I have an interest to declare.
I welcome the Bill. What is a successful litigant? It is someone who has had a wrong put right, in so far as a court can do that, by going to litigation. To achieve a remedy a person has had to litigate, to take advantage of the court system, and to have the dispute adjudicated upon. It is absolutely right that if a person elects to conduct such litigation himself or herself he or she should in no way be in a worse position than a person who has gone to a member of the legal profession for advice.
801 It would be foolhardy for members of the public to embark upon all types of litigation in person. Many serious cases have great pitfalls. Nevertheless there is no reason why they should not embark on certain small items of litigation. In that event it would be wrong for the rules of the country to put them in a position worse than that of the person who has sought legal advice.
I entirely welcome the principle of the Bill. The practical problems will arise in dealing with taxation. We have all known the litigant in person with the sun shining out of his eyes, who thought that he would be a latter-day Marshall Hall, and who has brought an action which he wants to keep going for a long time. Anyone who has been at the Bar for any length of time has seen this kind of situation. It would be foolish to pay for all of the many hours that such a person has spent in preparing his litigation. For such a person it has become almost a full-time hobby, if not a full-time occupation. Obviously, this can only be dealt with by rules.
I believe that many solicitors prepare proofs for trial by, in the first instance—having gone over the matter which is to be litigated with the client—sending the client home and telling him to write out in detail everything he remembers about the case. The litigant who does not appear in person is not paid for that. He carries out that task, returns to the solicitor, who asks him further questions and as a result trims the statement and prepares the proof. It would be wrong to let the litigant in person have costs for doing something for which the litigant who goes to a solicitor gets nothing.
I believe, too, that a litigant represented by lawyers does not receive expenses for attending court, for failure to attend work and so on. These are matters which can be explored in the rules. What is absolutely right is that the litigant in person should receive proper compensation, if he is successful and is awarded costs, for the additional work he has done because he has elected to conduct the case in person. The right hon. Gentleman's Bill will right a considerable wrong which affects an important minority.
§ 12.6 p.m.
§ The Lord Advocate (Mr. Ronald King Murray)
We have heard speakers from England and Wales. Perhaps it would be appropriate for me to intervene at this point to put a Scottish view. I give a general welcome to the application of this Bill to Scotland. Unlike its predecessor, this measure does apply to Scotland and my Department will give the right hon. Member for Middlesbrough (Mr. Bottomley) all the necessary assistance to ensure that it conforms with the requirements of Scottish law and is effective in Scotland to convey the same principle which it is designed to establish in England and Wales.
In Scotland, as in England and Wales, it is necessary to establish the principle that the litigant who conducts his case should receive expenses. I use the word "expenses" and I notice the hon. and learned Member for Wimbledon (Sir M. Havers) raise his eyebrows. To a Scotsman the mere title of this Bill is an eyebrow-raising exercise because of the reference to costs. Costs are a technical and sacred term in the English courts, corresponding to the term "expenses" in the Scottish courts. English lawyers like to use "expenses" as a loose, omnibus phrase and "costs" when talking of technical detail. The situation is reversed in Scotland. I do not know whether anything can be done about the title of the Bill, because as it stands it would be misleading to Scottish lawyers. However, that is a minor detail.
In Scotland the position is at least as confused as it is in England and Wales. It is at least certain that a party litigant—as we call a litigant in person—could not recover any losses of earnings involved in the preparation of his case, for example, in interviewing witnesses. The hon. and learned Member for Montgomery (Mr. Hooson) waxed eloquent about the long hours spent by a starry-eyed would-be Marshall Hall. I could not help wondering whether such a litigant in person—if his remuneration depended on success—might not after all be entitled to the money at the end of the day.
I accept what the hon. and learned Member for Montgomery said about the 803 need for this issue to be dealt with comprehensively in the rules. That is the key to the success of the Bill—that there should be rules of court for this operation which are at once humane and effective but which do not permit the abuses which can be anticipated. In Scotland there is a considerable degree of doubt about what a litigant in person can recover. A recent Scottish case—Malloch against Aberdeen Corporation—was decided in the House of Lords in 1973, and took us part of the distance. That established the rule that a litigant who conducts his own case can claim in respect of fees paid to a solicitor for advice on how to conduct his case.
That does not take us very much further, because we are still in the iniquitous situation that, for some reason, a special class of party litigant exists, namely, those who are solicitors. If my memory serves me correctly, the solicitor who got the benefit of the rule in the case I have mentioned is now the hon. Member for Moray and Nairn (Mrs. Ewing). It is undesirable that there should be this discrimination. I welcome the Bill and its application in Scotland. I am sure that it will do a great deal of good.
§ 12.10 p.m.
§ Mr. Ivan Lawrence (Burton)
I am unhappy to strike a discordant note in this atmosphere of complete agreement, which is most unusual amongst lawyers. First, I should declare an interest, since I am a practising barrister. I am unhappy about the Bill, but not because I am worried about the threat to the livelihood of the Bar or to the status of the profession.
It is easy for a lawyer to say how marvellous is such a Bill because it is consistent with public opinion. I see that the New Law Journal says:We cannot see on what conceivable ground it can fail.It is now fashionable for lawyers, who belong to a rather conservative profession, not always to support the traditions of their own activity and to say "Let us be free-thinking and liberal and not stop the march towards progress." It is probably easier for all lawyers—I do not impugn the motives of hon. Gentlemen—to agree with the Bill.
My concern is that the Bill will be a trap for people who are fed up with the idea of having lawyers to act for them. It 804 will be a trap into which many people may be unsuspectingly led.
The right hon. Gentleman has said that the object of the Bill is to put the litigant in person in the same position as the lawyer-assisted litigant. I accept that as a basis for my doubts. The question is whether the Bill puts the litigant in person in the same position as the lawyer-assisted litigant. That is highly doubtful.
Procedurally, what is the situation? The lawyer-instructing litigant cannot claim for the time he has taken off work or for the loss of his income while concerned with the litigation. He cannot claim for the time that he takes in travelling, or for the cost of travelling. He cannot claim for the time taken and the work he himself has done in the preparation of the case. Therefore it is proposed to give rights to the unassisted litigant which the assisted litigant does not have. It does not put him on the same basis. It gives the litigant in person an advantage which the assisted litigant does not have.
However, I am not pitching my argument purely on that basis. More important, there should be no trap into which the unsuspecting disliker of the lawyer should fall. Over the years, much thought has been given to that issue. In the past the judiciary and the lawyers have withstood this move, not because it would in some way undermine the profession but because injustice frequently resulted from not being legally represented in court. If temptation is put in the way of persons to go to court without legal representation, and injustice to their cause results, injustice, and not justice, will result from this Bill.
The substantive law is complicated. There is very often the need for a trained mind to go into all of the substantive issues. The procedure of the law is labyrinthine, and only people who are experienced in picking their way through the jungle of procedure are likely to effect a successful end. The litigant may be very nervous and feel inferior when he faces all the paraphernalia of the law. He is then not best equipped to present his case as effectively as he might. Those matters were pointed out by Justice. The subcommittee of the Standing Committee on Civil Justice said that litigants in personare frequently unable to do justice to themselves and the cause for which they are fighting, 805 getting lost in the procedural maze or missing the points which would carry weight with the court.It is the experience of practitioners that some litigants in person become obsessed with the righteousness of their causes, which leads them into making misjudgments in pursuing actions which are hopeless, and in some cases into misery and bankruptcy.
There is also an injustice to the system as it protects other litigants. If litigants in person conducting cases at inordinate length without the benefit of the trained approach cause delay, then expense, considerable waste of time and a shortage of justice to others waiting in the pipeline for their cases to be heard will be the result.
The Justice report also said:On the other hand they often unfairly embarrass opponents or waste valuable time of courts and court officials, either because of their incompetence or because of their over-persistence.Since this matter was first raised there have been improvements. The Conservative administration set up the small claims courts, which have brought tremendous benefits to the small claimant. In response to a request by Justice the Lord Chancellor's Department set up an office in the Royal Courts of Justice with a staff of three persons to assist litigants in person in the preparation of their cases so that they should have proper professional guidance as to the course which they were to follow. Reference has been made to the various advice documents from the Consumers' Association and the Lord Chancellor's Department.
I am unhappy about the Bill, and the more so since mine seems to be the only discordant voice. If the test is "Does this Bill put the unassisted litigant in the same position as the assisted litigant?", as far as I can see the Bill does not achieve that end. If I am right and the Bill encourages people to go to law because the expenses of doing so will be less without the assistance of properly qualified lawyers, a far greater injustice may result.
§ 12.30 p.m.
§ Mr. Edward Lyons (Bradford, West)
I add my voice to the earlier chorus in support of the Bill. But that is not to say that there are not many pitfalls attached to it.
806 I do not know what, if any, research has been done in the last 20 years into the make-up of litigants in person. My experience includes people who have had three or four solicitors and can get on with none of them, people who are not able to obtain legal aid because no legal aid committee will say that they have a case, people who are obsessed, and people who do not have a penny so that the defendant whom they sue is on a hiding to nothing since he will have to pay the damages if the plaintiff succeeds. Under the Bill, he will have to pay his costs as well; but, if he defeats the claim, he has no hope of obtaining his own costs from the penniless litigant.
Those are matters to give one pause. However, what the hon. Member for Burton (Mr. Lawrence) has failed to take into account is that future litigants in person may have nothing in common with past litigants in person. With inflation, earnings are increasing rapidly and the legal aid limit is not likely to increase anywhere near as rapidly. Therefore, people on low incomes will obtain legal aid for a reasonable case. People on high incomes will still be able to afford lawyers, whose own remuneration must increase with inflation.
There will, however, be a group of people in the middle—not necessarily the social middle class, but the economic middle class, which will very shortly include miners and many other people who will not have the opportunity to obtain legal aid because their incomes will be above the maximum laid down by the legal aid scheme. Such people will be denied recourse to justice unless they appear in person in the small claims court in the event of a small claim. If the claim is substantial, people will find that if they are outside the legal aid limits there will be a powerful deterrent factor against their bringing a claim. They are likely to be well-balanced people and people of some intelligence who may be able to make a reasonable estimate of the likelihood of success for their claim.
Therefore, in pursuit of what is supposed to be the great principle of English law—that the courts are open to everyone—the Bill is a step in that direction. Already litigants in person appear in the divorce courts. In my view, an increasing number of people will handle their divorces without recourse to lawyers. That 807 is no bad thing in undefended cases in which the litigant is not likely to suffer as a result of his lack of knowledge of the law as well as lack of legal expertise.
One point which worries me about the Bill is that the residue of people who have a bee in their bonnet, will believe, because their judgment is not sound and they are not legally assisted with legal advice, that they can win even when they cannot, and the existence of this Bill, when it becomes an Act, as I hope it will, will be an additional encouragement to them to bring an action in the belief that any money which they manage to borrow to start the action or which they may have to pay the court fees can be recovered. Therefore, almost inevitably as a result of the Bill a small number of additional cases may be brought by vexatious litigants who have a bee in their bonnet and whom no lawyer or legal aid committee would support.
Let us consider the legal aid machinery for litigants in person. If a person with a small income wishes to make a claim for, say, £1,000, he can obtain legal aid if he has a prima facie case except in the case of libel and slander. He can obtain a lawyer. Therefore, we must consider why a person at the lower end of the financial scale wishes to appear in person if a legal aid committee says that he has a prima facie case. Why should he continue on his own? If a person's income is above the legal aid limit, one can well understand why he should continue on his own or not bring the action, thus avoiding the possible risk of bankrupting himself.
But take the case of someone earning, say, £2,000, someone who is unemployed, or someone who has a mental history. Why should such people continue alone? They may be in an income bracket which entitles them to legal aid if they can show a prima facie case. Although no work appears to have been done on this matter in terms of obtaining statistics, we are dealing with people who cannot obtain legal aid because they cannot get a committee to say that they have a prima facie case or who quarrel with every lawyer they deal with because of a quirk in their personality.
If we were dealing only with that class of person, I should be worried that they would have an additional motivation by 808 the Bill to go to court. It is a fair guess that in times of economic stringency the Treasury will be under heavy pressure to reduce the legal aid bill. Therefore, the chances of the legal aid limits being increased appreciably are small. We must therefore consider the many people outside the limits who in future would be deprived of the opportunity of bringing a claim.
I turn to another matter in the Bill. It has been said that a plaintiff using lawyers cannot obtain the costs of his loss of earnings. It is not uncommon that plaintiffs or, indeed, defendants are unwilling to bring or to defend actions because of the loss of time to themselves involved by appearing in court. They are not so worried perhaps about paying the lawyers, but their time is so valuable that they would rather not be bothered to go to court. There is no recompense for them.
We must, therefore, be careful in the Bill to ensure that parity is maintained in cases of that kind. The expenses which I believe successful plaintiffs or defendants in person should be entitled to recover are the court fees and any loss of earnings caused by preparation of the case before it is heard in court. I am in favour of all plaintiffs being reimbursed for loss of earnings on the days that they appear in court. But that cannot simply be done for one class of plaintiff—the plaintiff who is not represented—but not done for another class. We should have standardisation.
I notice that the Bill is not wide enough to encompass an amendment entitling all successful plaintiffs and defendants, whether they be legally advised or not, to recover lost earnings for appearing in court. In order to maintain parity, it would seem fair to enable a litigant in person to recover lost earnings if he can show loss of earnings in the preparation of his case. He should have the money refunded.
The New Law Journal, in an article on 30th January giving very strong approval to the Bill, clearly took a line slightly different from that of my right hon. Friend the Member for Middlesbrough (Mr. Bottomley). It said that the basis of my right hon. Friend's short and simple Bill was that.costs shall be awarded to successful lay litigants in person to offset losses of earnings 809 arising from 'work done' in the preparation and conduct of their case.It is the view of the New Law Journal that the Bill relates only to compensation for loss of earnings. We know how slow litigation is on the civil side. If the scheme permitted a man who worked every night of the week for a year or two then to put in a bill for 200 hours of work at home which involved no loss of earnings, that could encourage certain persons to bring actions in the hope of a successful outcome for the purpose of making some money out of the action.
A number of people who bring actions in person and are not able to obtain legal aid have quirks of temperament, to put it as neutrally as I can, and often are not able to obtain work. They may be at home all day, not because of any injury they have suffered in an accident but perhaps because they are psychopaths or have other disabilities which make it difficult for them to retain employment. Such people get obsessed with a case. It need not relate to an industrial or motor accident. These people cannot get a job. They have nothing to do with their time. We would have to think very hard before saying that they should be given the motivation of knowing that they could make a considerable sum on the basis of hours spent on the preparation of a case, because that motivation would perhaps be sufficient in some cases to induce them to bring actions that they would not otherwise bring.
With the qualifications I have expressed and in the hope that the Bill will be carefully scrutinised in Committee, all in all I welcome the Bill. It will mean that people above the legal aid limit who have decent cases will be able to bring their cases to court without being out of pocket any more than any other litigant is out of pocket. This is a very good thing. It is on that basis that I thank my right hon. Friend the Member for Middlesbrough for assisting the Bill on its passage towards the statute book.
§ 12.33 p.m.
§ Sir Michael Havers (Wimbledon)
I join in the congratulations that have been offered to the right hon. Member for Middlesbrough (Mr. Bottomley), particularly on winning so high a place in the ballot. I commend his choice of Bill when in that special position.
810 I should like also to pay a tribute to my hon. Friend the Member for Shoreham (Mr. Luce), who did so much of the preparatory work. The Bill, save for the extension to Northern Ireland and Scotland, is otherwise in almost identical terms to my hon. Friend's Bill. I pay tribute to the present Lord Chancellor and to the previous Lord Chancellor for the contributions they have made.
The discordant note that came from my hon. Friend the Member for Burton (Mr. Lawrence) was exaggerated. I think my hon. Friend was too anxious about it. We have all come across litigants in person who are obsessed. There are litigants in person who go scurrying from court to court with ever-increasing bundles of papers. They are seen day after day, sometimes year after year, in their various tours of the courts seeking the ear of a sympathetic judge.
But such people are not the sum of those who are prepared to, or who wish to, conduct their own case in court. Others wish to do so because, perhaps, they have had a row in the past with a solicitor and have lost faith in the legal profession and will not go to another solicitor. I do not see why that latter category should be deprived of the very necessary remedy which the Bill provides.
I disagree with my hon. Friend the Member for Burton also that this is a conscious decision on principle by the courts. I do not think it is. I think that the courts had no choice in 1969 when the case of Buckland v. Watts was before the Court of Appeal, because it was decided there by a very responsible trio of Court of Appeal judges that ever since the reign of Edward I the question of costs in civil cases could cover only the professional costs which had been incurred by a litigant.
There is a passage from "Coke's Commentary" which is worth examining because, as the learned Lord Justice said, it affords a key to the true view of the law of costs. That passage is:Here is express mention made but of the costs of his writ but it extendeth to all the legal costs of the suit but not to the costs and expenses of his travel and loss of time …".That goes back to the original statute of Edward I. In 1969, although the master, the High Court judge and finally at least one of the Lord Justices in the 811 Court of Appeal all expressed sympathy with the litigant in person who was seeking to recover his costs, they all felt bound by this very long established law. Therefore, I do not think that has been a matter of principle as a result of a conscious choice by the courts.
So yet again the House is coming to the aid of the courts, which have felt bound by past statutes, and giving them the opportunities which I believe they would have liked all along to have provided for the litigant in person.
It is important to emphasise that the costs that may be recovered will not in any way be treated as professional costs. It can only be for time spent. There cannot be any question of basing costs on the same sort of level as one would base a professional lawyer's costs. It will be very interesting in Committee to examine the question of to what extent time away from work should be covered.
I am not anxious about those obsessed litigants in person who may put in a bill for 200 hours of work, because I am sure that any proposed rules made by the rules committee will include the magic phrase "reasonably and properly incurred", which will dispose of the 200-hour claim by the obsessed litigant.
This question has been well dealt with by taxing masters, not only in respect of litigants in person but for some counsel who are exceptionally longwinded and seek to claim that they have spent much longer on a case than an ordinary, reasonable counsel would do. But they have had that extra amount promptly and properly disallowed by the taxing master.
It will be a difficult choice as to whether it can be kept merely to loss of hours at work. I believe that there is much to be said for encouraging the litigant in person not to take time off work. If he has a witness summons or a subpoena to serve, he should be encouraged to do that in the evening or at the weekend. If he has to travel to make a proper plan of the site of an accident, he should be properly compensated in terms of time lost as well as being able to recover his travelling expenses.
I hope with confidence that when the Bill finally becomes law the rules committee will consider what has been said in this debate and what is said in Com- 812 mittee as I hope that it will then broadly reflect the views of the House and be liberal in the way that it draws up the rules properly to cover matters which have been incurred by a litigant in person exercising a fundamental right which exists always in Britain.
Just as I did over a year ago, again today I give the Bill a warm welcome and wish it a speedy passage through the House.
§ 12.40 p.m.
§ The Parliamentary Secretary, Law Officers' Department (Mr. Arthur Davidson)
I should like to add my congratulations to my right hon. Friend the Member for Middlesbrough (Mr. Bottomley) for introducing this Bill. He has litigated in person on his own behalf today and he certainly did not need any legal representation. I think, however, that this is one court of law where he will have difficulty in getting his costs, whether or not this Bill becomes law.
I should also like to pay tribute to the work done by the hon. Member for Shoreham (Mr. Luce) on this Bill. It has had an interesting parliamentary history—a parliamentary history of which I have personal experience because, as the hon. Member for Shoreham will know, when I introduced a Private Member's Bill a couple of Parliaments ago mine went through all the stages in this House, when the same fate befell it as befell his Bill. An election was called and the Bill was lost. Happily, my Bill was reintroduced by the hon. Member for Beckenham (Mr. Goodhart) and I am sure that the hon. Gentleman will be as pleased as I was then that his Bill has been reintroduced in its present form.
I also pay tribute to my right hon. Friend for choosing this Bill because it has given me an added pleasure to support it on behalf of the Government, first because I was a sponsor of the hon. Member's Bill and also because this Bill is very much the brain child of the Consumers' Association and I have the privilege to be on the council of that body. I should like to add to the tributes which have already been paid to David Tench, who has been of such assistance to hon. Members in all quarters of the House whenever consumer legislation has been discussed here.
The Government, I am happy to say—it will come as no surprise to the House 813 —welcome the Bill. Subject to certain small reservations on the wording, which can certainly be put right in Committee, there should be no reason why the Bill should not be given a Second Reading. Any of the points which have been raised—many of them are Committee points—can better be argued in Committee, as the hon. and learned Member for Wimbledon (Sir M. Havers) said.
My right hon. Friend has given a very clear statement of the purpose of the Bill, and it would be superfluous for me to add very much to that. It rectifies what has for many years been an indefensible anomaly, in that a solicitor acting on his own behalf and frequently appearing in a court where he might not normally have a right to appear, such as the High Court, could recover his costs, whereas a litigant appearing on his own could not. This Bill clearly rectifies that anomaly.
I am happy to say that the Bill does not just stop there, and quite rightly so. As hon. Members have said, the cost of civil litigation is increasing and, at the same time, the number of people in civil courts who wish, for whatever reason, to bring cases or defend cases themselves also increases. The reasons for this are not entirely financial. Many people, for various personal reasons, prefer to litigate on their own behalf, and certainly where small sums are involved it is right that they should be able to do so and in many cases should be encouraged to do so—and not only for the reasons mentioned by my right hon. Friend.
No one should be forced to seek the help of a lawyer. Equally, nobody should be discouraged from doing so, probably because the help of a lawyer is needed in the overwhelming number of cases. This Bill, therefore, is one step, but an important step, which will help the litigant in person.
My right hon. Friend referred to the introduction into the county court in October 1973 of a scheme to deal simply and inexpensively with small claims. This scheme, which was encouraged by the right hon. and learned Member for Surrey, East (Sir G. Howe)—and I am happy to say that I was on the Committee considering what is now the Fair Trading Act when this matter was dis- 814 cussed, and I lent my support to it—has been of positive help to a large and growing number of people.
My right hon. Friend mentioned some figures. I can give him some more up-to-date figures. Up to Christmas of last year, after nearly 15 months of the scheme, 6,344 cases were referred to arbitration. This figure represents only a small percentage of those cases which have been begun and in which arbitration was asked for.
I think hon. Members will agree that the great advantage of incorporating this scheme for dealing with small claims into the county court system is that many of the advantages of the county court are preserved. For instance, a summons for a sum certain—a liquidated amount—is known as a default summons. If within 14 days of the service of the summons the defendant does not file an indication of his defence, the complainant may proceed to judgment without any hearing at all. Many other cases are settled by the defendant paying the sum claimed on receipt of a summons or at least admitting that the sum was due and asking for time in which to pay it.
If a defence is filed, the procedure provides for a preliminary hearing to be held in which the registrar of the court can try to settle the dispute between the parties. Many more cases are disposed of at this stage, and the figure of 6,344 refers only to those cases which go on beyond this stage to arbitration at which the arbitrator, usually the registrar of the court, decides the issue between the parties at an informal hearing in private and without any of the normal strict rules of court procedure.
The hon. Member for Shoreham mentioned registrars, and I should like to pay my tribute to the way in which they have adapted to the informal procedure which is really demanded in the new small claims procedure. They largely dispose of wig and gown and many of the outward trappings of the courts, which in the overwhelming number of cases are necessary but which in the case of small claims are more off-putting and sometimes discouraging to people to use legal methods of enforcing what they correctly regard as their right. I therefore add my tribute to the way in which the registrars have adapted themselves. Clearly, if they were 815 to have to assess loss of earnings as well, it would add to their difficulties and to the amount of work involved, but I make no comment about that at this stage.
One of the advantages of the small claims procedure with regard to claims under £75 is that litigants in person or litigants in general may use this procedure without fear of paying the other side's legal costs, other than the small amount allowed on the issue of the summons. This is also a positive incentive to people to enforce their rights. I am grateful to my right hon. Friend for giving the proper weight to this innovation. It is an important part of the help given by the court to the litigant in person.
My right hon. Friend mentioned the booklet that is available. Without going into details, perhaps I may also mention that the courts will provide pro-forma particulars of claim—that is, specimen examples for every type of common case—and a statement of what the case is all about, on which the litigant can answer some simple questions to give the courts and the defendant a basis of what his claim is about. The defendant also gets with the summons a simple form on which he may indicate his intentions, whether he wishes to defend or, if he admits the claim, how much he feels he can afford to pay each week. The court officials are most helpful in explaining in as simple language as possible what is required to bring or defend a claim of this nature.
My right hon. Friend mentioned the problem of taking proceedings against people who have no money. I must tell my right hon. Friend that the arbitration scheme does not guarantee the plaintiff his or her money. No scheme could do that. If the defendant has no money, there is clearly no point in taking proceedings. But I would tell my right hon. Friend, if he does not know it already, and I think he does, that the booklet warns possible litigants of this, and so do court officers.
Obviously, if judgment is given and the defendant does not pay, the court itself will not, and cannot, pay over the money. The plaintiff must enforce the judgment himself, and, clearly he can do that only if the money is there. However, further to assist the litigant in person my noble Friend the Lord Chancellor is considering 816 issuing a leaflet explaining the method of enforcing judgments. In the High Court my noble and learned Friend is presently considering a review into the position of the litigants in person attending at the Royal Courts of Justice. I can tell my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) that one of the matters being considered is the type of person who litigates in the High Court.
Changes in divorce procedure made in 1972 now make it very much easier for the litigant in person to conduct his or her own divorce proceedings if he or she wishes. This can be recommended only in very simple cases, and the leaflet available at the courts to help with what has been called "Do-it-yourself" divorce makes the important point that "doing it yourself" should be reserved for the simplest cases.
Right hon. and hon. Members on both sides of the House have made it clear that the Bill should not be taken as a carte blanche to discard the services of lawyers. The law can be, and frequently is, very complex, and no litigant should be encouraged to undertake complex and technical legal disputes without advice and, if necessary, representation. These moves to help the litigant in person do not remove the necessity for the assistance of lawyers in the overwhelming number of cases.
There is, however, a growing body of litigants in person who appear before the courts, and it is that development that makes the Bill timely. If a man takes time off work to prepare his case for court and to attend court to present the case, it is right that he should recover something in respect of that loss. At present he does not do so. The present position of the litigant in person is not satisfactory. My right hon. Friend explained why, and it would be wasting the time of the House if I were to explain further.
The litigant in person recovers his out-of-pocket expenses but nothing for the work he does, and that is what the Bill seeks to remedy. The Bill will allow the rules of court to determine exactly the expenses that a litigant may recover and will, it is hoped, remove any areas of doubt and anomalies in this field. Much more important, it will allow the litigant in person to recover, subject to the rules 817 of court, a sum in respect of the work done in connection with the proceedings.
I agree with my right hon. Friend as to the position of the litigant in person in a "small claim" in the county court—that in those cases no legal costs would normally be allowed because the amount being claimed was less than £75 and so it would be wrong if the litigant in person were to receive costs when the person with legal representation does not do so. That would be a positive disincentive for people to be represented when pursuing small claims in the county courts.
It is not possible for me to say that the Bill will allow the litigants in person to recover this, that, or any particular sum. The Bill introduces the principle that litigants in person may recover costs in respect of expenses incurred or work done in relation to proceedings. It is limited to civil proceedings. The detailed working out of what the litigant in person will actually receive and the sums he will receive are left to be decided by rules of court, and I think that the House will agree that that is right.
In England and Wales it will have to be decided by the Supreme Court Rule Committee and the County Court Rule Committee. In Scotland and Northern Ireland the rule-making authorities will also have to consider this question, and I am grateful to my right hon. and learned Friend the Lord Advocate 818 for relieving me of possibly having to explain the Scottish position, which I should be totally incapable of doing in any case.
The question of costs is, of course, highly technical. I am sure that hon. Members will realise that in these rule-making authorities one has the necessary expertise and experience to decide these matters. It is not possible, therefore, for me to say anything in respect of my right hon. Friend's comments on the work done in leisure time, other than that if the Bill becomes law this is a matter that the rule-making authorities will no doubt consider and that I am sure we shall debate, probably at length—I have no doubt that if there are lawyers on the Committee, as there will be, it will be at length—in Committee.
There is little more for me to say at this stage. The Bill introduces an important and worthwhile principle. It has been commended by hon. Members on both sides of the Committee, although I am sorry that the hon. Member for Burton (Mr. Lawrence) was a little unhappy about it. I therefore have much pleasure in commending it to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee, pursuant to Standing Order No. 40 (Committal of Bills.)