§ 2.51 p.m.
§ [The Question was as follows:
§ To ask Her Majesty's Government whether they are aware that in a case under the Legal Aid Scheme in the 634 High Court of Justice, Chancery Division, Mr. Justice Roxburgh, in his judgment on costs on 13th January, 1956, said inter alia,
- (1) "In olden days, before the Legal Aid Scheme, if you suspected a man of stealing something, you had to prove it. You were not able to put him to the expense of proving that he did not steal it";
- (2)"The plaintiff abandons his action so the position that results is that … the defendants … do not get the formal vindication from the Judge which they may at least have hoped for seeing that their chances of recovering anything in this action from this plaintiff … are nil";
- (3)"The question of public interest is posed …: is it right that the State should wholly maintain [a plaintiff] in making a charge which in substance is a charge of dishonesty against some people and then wait until they have vindicated their honour —not being proved to be guilty, but vindicated their honesty—and then, when at great expense they have vindicated their honesty, turn round and say: 'Well, true enough we maintained this action, paid the whole costs with no contribution at all upon the plaintiff, but so far as the defendants are concerned you can whistle for the costs in vindicating your honesty.' That is the question that I pose. It is not for me to answer it ";
- (4) "I think it was a most unreasonable action, indeed, a shocking action";
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I hope that your Lordships will acquit me—and here I believe I am speaking for my predecessors as well as for myself—from labouring under any sense of complacency about the operation of the Legal Aid Scheme. I am of opinion that it is a great and beneficent Scheme which has resulted, and is resulting, in a large number of men and women obtaining justice. But, as I stated in a recent address which I made at The Law Society, I am constantly on the lookout for ways and means to improve the working of the Scheme and I am ever ready to accept criticism offered in an attempt to improve it. I took that opportunity of urging upon the legal profession, which is responsible for 635 the operation of the Scheme, constant care and watchfulness against abuses of it, and I am satisfied that those barristers and solicitors who devote a large part of their professional time to administering the Scheme are as zealous for its good reputation as I am.
I have made a very careful examination of the case to which the noble Viscount refers. I am quite satisfied as to three matters. First, that the plaintiff genuinely believed in his case, as indeed Mr. Justice Roxburgh found, and that it was not an attempt to use the Legal Aid Scheme as a vehicle for blackmail. Secondly, I am satisfied that the committee set up by The Law Society who investigated the applications of the plaintiff for legal aid acted with the fullest sense of their responsibilities. Thirdly, I am satisfied that the leading counsel of great experience in this particular type of action, who was very properly brought in to advise at an early stage and whose opinion must have carried great weight with the committee, acted throughout in accordance both with the letter and spirit of the Legal Aid Scheme and with the high principles of our profession. In the result the plaintiff was proved to be quite mistaken, and as soon as that was apparent he very properly abandoned his case.
It does not seem to me to be possible to guard against occurrences of this kind. No one with any experience of the law would ever guarantee the outcome of a case. All lawyers have experience of the most cast-iron case failing and the most unlikely succeeding. All that can be done in a Scheme of this kind is to attempt to ensure that no case is brought or continued unreasonably, and to bear in mind the consequences of a grant of legal aid on all the parties to the litigation. I think those principles were in the minds of those concerned in this case.
One consequence of a grant of legal aid is that the person to whom it is granted does not automatically have to pay the costs of his opponent if he loses, and in this case the plaintiff was ordered to be under no liability for the costs of the successful defendants, who have thus been put to considerable expense. This provision of the Legal Aid and Advice Act, 1949, was a specific recommendation of the Committee on Legal Aid and Advice, which was accepted by the Government 636 of the time and, with the consent of all Parties, incorporated by Parliament into the Act. Without a provision of that nature poor persons would be unable to risk litigation for fear of the consequences if they lost. During the passage of the Act and since, various suggestions have been made to alleviate the position of defendants in the circumstances in which the defendants to this case find themselves. None has commended itself to me or to my predecessors, but I will continue to give this aspect of the Legal Aid Scheme continuous and most anxious study.
My Lords, I should like to thank the noble and learned Viscount the Lord Chancellor for his comprehensive and sympathetic answer to my Question. May I ask him this supplementary question? In an action of this character, where the costs of the plaintiff are paid by the State and the plaintiff gets off scot-free, would it not be fair and equitable that the State should pay the costs of the defendant? I would also ask him this further question: whether Her Majesty's Government will now consider the advisability, if necessary by an alteration of the law, of allowing Judges in these legal aid cases to use their discretion in ordering that the costs of defendants be borne by the State?
§ THE LORD CHANCELLOR
My Lords, as I understand it, the first suggestion of the noble Viscount is one that was put forward during the Committee stage of the Bill in 1949 and was rejected by another place. I have considered this proposal. At the moment I do not feel that, on balance, taking a purview of the whole operation of the Scheme, it would be right to put this additional burden on the State; but as I told the noble Viscount, I am closely considering the working of the Scheme and I shall consider his advocacy of the suggestion with the other relevant material matters.
§ VISCOUNT HAILSHAM
My Lords, while associating myself with what the noble Viscount, Lord Elibank, has said as regards the possibility that the fund might bear the costs of the other litigant in suitable cases, and subject of course to the discretion of the judge who tries the case, I should like my noble and learned friend the Lord Chancellor to bear in mind in the meantime, that it is within his power, without new legislation, to 637 apply that part of the Scheme which relates to legal advice and to ensure that every case of any difficulty receives the careful opinion of counsel, in addition to the support of the Committee, who, after all, give it only a general consideration.
§ THE LORD CHANCELLOR
My Lords, in regard to the first part of the question of the noble and learned Viscount, I think it is some measure of the difficulty of the proposal that he was himself the advocate of this suggestion in another place, and even then it failed to get a majority of the House of Commons. On the second point, the noble and learned Viscount will remember that Her Majesty's Government are under pledge to introduce the Legal Advice Scheme during this Parliament. He knows that at the moment there are various difficulties, but he may be sure that I have his suggestion most sympathetically in mind.