§ 2.36 p.m.
§ [The Question was as follows:
§ To ask Her Majesty's Government whether they are aware that in a case in the High Court of Justice, Chancery Division, where a legally aided plaintiff claimed damages for alleged nuisance, Mr. Justice Roxburgh, giving judgment for the defendants said, inter alia (1) that had the plaintiff given honest evidence, the action could probably have succeeded; (2) he was deaf and was 81, but people were not entitled to avail themselves of age, deafness, or anything else to attack their neighbours dishonestly; (3) both he and his wife had given false evidence and had put raked exhibits before the Court; (4) he (his Lordship) had often come across false evidence, but the systematic fabrication of evidence was something he seldom met with in the rarer air of Chancery; (5) the plaintiff was legally aided and what was wanted was some means of stopping a legally aided case which was being boosted up by false evidence. So far as he (his Lordship) knew there was no means of doing that; (6) the effect of his (his Lordship's) order would be that the costs would be shared between the defendant and the taxpayer; and 846 having regard to the aforesaid observations of the Judge and the possibility that defendants and the taxpayer in the future may find themselves subjected to similar unfair results, whether Her Majesty's Government will consider the advisability of introducing into the Legal Aid Scheme such changes as will enable a legally aided case which is being boosted up by false evidence to be stopped.]
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)My Lords, I ask the House to forgive me if I answer this Question at some length, but the matter is both important and complex, and I cannot avoid going into considerable detail.
When I last had occasion to answer a Question by the noble Viscount on a somewhat similar matter, I said that after making a very careful examination of the case referred to at that time, I was satisfied as to three matters: first, that the plaintiff genuinely believed in his case; secondly, that the Law Society's committees, who investigate applications for legal aid, acted with the fullest sense of their responsibilities; and thirdly, that counsel acted throughout in accordance with both the law and the spirit of the legal aid scheme and with the high principles of our profession. I gave my view that 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 consequence of a grant of legal aid to all the parties to the litigation.
In this case there is one important difference to the one I considered two years ago, for here there is a finding that the assisted person and his wife gave false evidence and put faked exhibits before the court. My Lords, I have given equally careful examination to this case as I did to the last. Again I find (as indeed did the learned Judge, whose full judgment I have had an opportunity of reading) that the Law Society's committees acted entirely correctly and properly throughout. The learned Judge pointed out in his judgment that the issue raised was how it was possible to stop a legally aided case when things turn out contrary to expectations.
My Lords, in fact the regulations which my predecessors have made provide 847 that the responsible committee shall discharge the certificate of legal aid on information coming to their knowledge which leads them to consider that there are no longer reasonable grounds for the proceedings, or that in the particular circumstances it is unreasonable for legal aid to continue. It is, therefore, open to anyone who thinks a case should no longer be legally aided, including the other side or the solicitors or counsel acting for the legally aided person, who are specifically absolved by the regulations from being prevented from giving it by reason of privilege, to give what information they have to the committee. No information reached the appropriate committee in this case. Both the opposite party and the solicitor and counsel acting for the legally aided person knew that the question of false evidence and faked exhibits would be strongly raised. The defendants did not make any representations to the committee, but in fact made an offer to settle the action.
The solicitor and counsel for the legally aided person, after examining him on the facts, believed him to be speaking the truth in his denial of tampering with the evidence, and decided that it was their duty to continue to represent him. The learned Judge, in his judgment, does not criticise this decision in any way but, if I read him aright, commends the course which they took. My Lords, in those circumstances neither can I criticise their actions in circumstances of very considerable difficulty, and I am mindful of the fact that the other side, who were equally at liberty to brings the circumstances to the attention of the appropriate committee, did not do so.
In these circumstances, I think that the standard of conduct which I attempted to define when I last answered the noble Viscount has been maintained, that the case was not continued unreasonably, bearing in mind the consequences to the opposite party. I appreciate that those consequences are severe, but, my Lords, despite further consideration of the particular feature of the Legal Aid Scheme under which a successful opponent in a legally-aided case frequently has to bear the whole burden of his costs himself, I am still unable to commend any method under which that position can be alleviated.
VISCOUNT ELIBANKMy Lords, I beg to thank the noble and learned Viscount on the Woolsack for his comprehensive reply, which undoubtedly, it seems to me, throws considerable light on the whole subject and will be of utility to those engaged in these kind of actions. But as I understand it (I may be wrong, and if I am perhaps the noble and learned Viscount will correct me), the references he made were to the action whilst it was actually taking place, and not to anything previous to the action. If that be so, is he aware—I am sure he will be—that in Scotland it is often the practice for the intended defendant to write to the legal aid committee which is considering awarding a certificate to a would-be plaintiff? If that be so, and agreeing, as he will, that some things are done better in Scotland, could he encourage this practice in England?
LORD SALTOUNMy Lords, in view of what the noble and learned Viscount says about the heavy cost to a successful party where his opponent has received legal aid, would it not be possible to institute some system of insurance whereby people in that position might have some alleviation?
§ THE LORD CHANCELLORMy Lords, may I deal first with the point raised by the noble Viscount, Lord Elibank? It does not reflect the situation in the case that he has brought before the House, because nobody suggested that here the legal aid committee were wrong in granting the certificate originally. The learned Judge specifically deals with that point. Of course I am always ready to consider any improvement in procedure, especially that emanating from my native land, and I should like to consider that aspect on the general bearing of the matter. But, as I say, it did not arise in this case; the difficulty arose later. I tried to deal with that point specifically. On the general point I should like just to say this: that in a population of 50 million people there are bound to be liars, and if you create a scheme to help people to establish their legal rights you cannot entirely avoid dealing with those liars. The law has created an admirable system for detecting lies when the matter comes into court. The difficulty is to find a system which will detect them at an earlier stage; but that problem I shall have constantly in mind.
849 I have considered the most interesting and, prima facie, attractive point suggested by my noble friend Lord Saltoun. The difficulty is that if there were available, and especially if there were always available, something in the nature of an insurance fund, whether provided by the State specifically or collected from fees or the like, it would have a tendency to prevent settlements of cases and the arriving at a just and proper compromise in many of the cases where these take place at the present time. We have considered the point very carefully, and, as my noble friend asks, I will consider it again; but I should not like him to think that our minds have not been open to that point. We have considered it, but like all good suggestions it will bear consideration again, and that I shall give it. I do not want to raise too many hopes on the point, because we have found difficulties.
§ LORD SILKINMy Lords, the noble and learned Viscount has touched on the general question. Perhaps he will not mind my putting this question to him. Would he not agree that, in spite of occasional abuses, the benefits of legal aid have been so overwhelming that it would be very wrong indeed to curtail the advantages which this legal aid system offers to poor people who are unable to get access to the law without it?
§ THE LORD CHANCELLORI agree with that comment of the noble Lord, Lord Silkin. On balance, I am sure that the scheme has done a great deal of good. I said that it was bound every now and then to come into contact with people with no great sense of the truth, but it is remarkable (I hope the noble Viscount, Lord Elibank, will bear me out here) that it is two years since, very properly, he brought the last case to my attention; and I think it is fair to say that during those two years there have been extraordinarily few cases—I find it difficult to find others—in which there has been some public comment and feeling against the system. I believe, if I may put it in these terms, that the establishment of the rights of the poorest citizen against either the richest citizen 850 or the State is one of the fundamentals of a democratic system, and it would be a pity if our attempt to ensure that were to suffer because of the evil doing of a small minority.