HL Deb 15 December 1960 vol 227 cc575-95

2.35 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR) had given Notice of two Amendments to the Standing Orders relating to Judicial Business. The first was to move the following as a new Standing Order: Where a party to an appeal has applied to an Area Committee for legal aid, and the decision of the Committee has not been announced before the expiration of the periods of time limited by Standing Orders Nos. II, V or VI, such periods of time shall be extended until one week after the refusal of the application or the issue of a certificate.

The second was to move, as an Amendment to Standing Order No. V, after paragraph (3) to insert: (4) This Standing Order shall not apply to Appellants who have been granted legal aid.

The noble and learned Viscount said: My Lords, the object of the two Amendments which I am to move is to adapt the Judicial procedure of your Lordships' House to make it convenient for legal aid cases. Legal aid has been available for House of Lords appeals since the beginning of this month. I hope that your Lordships will not mind if I ask the indulgence of the House to let me trespass for a short time on the Business of the House, because this raises somewhat wider questions of legal aid which I should like to put before your Lordships.

Standing Orders II, V and VI, which govern the Judicial procedure of the House of Lords, prescribe times within which Petitions for leave to appeal must be lodged, security must be given and cases have to be lodged. Anyone who wishes to be legally aided in the House of Lords must first apply to an Area Committee for a legal aid certificate. It is likely that the Committee will already know enough of the merits of the would-be appellant's case and of his means to be able to deal expeditiously with his application for legal aid. I have no doubt that these Area committees will give high priority to such cases, which will be comparatively rare and, at the same time, important if they are meritorious. There will, however, be some cases in which Committees are not able to consider applications for legal aid for the House of Lords and give their decision in time for the applicant to proceed within the periods of time laid down by the Standing Orders, to which I have already referred. The purpose of my first Amendment is to extend the time allowed by Standing Orders II, V and VI until one week after an Area Committee has granted or refused legal aid.

The purpose of my second Amendment is simply to provide that Standing Order V, which requires security for costs to be given by appellants, shall not apply to appellants who have been granted legal aid. It would be inappropriate to require security for costs from an assisted person and to expect him to find £700 by way of security. The alternatives allowed by Standing Order V, of paying into the Security Fund £200 and giving a recognizance to the amount of £500, or to procure two sureties to enter into a bond to the amount of £200 and a recognizance to the amount of £500, would be just as impracticable from the point of view of the appellant. Any such requirement would, in all probability, defeat Parliament's intention of making legal aid available in your Lordships' House. If, in any particular case, the Appeal Committee considered that a legally aided appellant should give some security for costs then, notwithstanding the proposed Amendment, there would be nothing to prevent an order from being made to require him to do so. But we must recognize that such an order would be an exceptional case, in the nature of things, because the legally aided appellant will already have been required to contribute what he is considered to be able to contribute to the costs of the case.

The noble and learned Lord, Lord Reid, has been kind enough to call my attention to the hardship caused to the unassisted opponent of an assisted person, when the former wins his case in this House and the latter has contributed nothing to his opponent's heavy expenses. Therefore, I should like to take up just a moment or two on this difficult problem. It is a difficulty which, as your Lordships will remember, has been discussed many times before. There have been various proposals for paying the assisted person's opponent's costs out of public funds and for establishing some form of indemnity fund. Each of these proposals has its own disadvantages.

No doubt, the fundamental difficulty is the cost. Some months ago, while the Bill for the Legal Aid Act of this year was before Parliament, it was estimated that it would cost £200,000 to set up a full indemnity fund for High Court cases alone. I could not say what the cost would be to-day, but I have little doubt that it would be higher than that, and it is only right to remember that an expenditure of that order could not be incurred without very carefully considering the case for it, compared with the case for extending the Legal Aid Scheme in other ways and also the claims for other social services. Your Lordships will appreciate that, though it might be said that if the appellant can pay costs at one stage, why not at another, that would be a very difficult line to uphold.

May I say one word on a matter on which I feel strongly, as to the position I have adopted with regard to legal aid? I believe that it is an essential part of our civilization that the courts should be open to the whole range of the people. In the last century this began with the famous remark of Mr. Justice Maule to a tinker who had been convicted of bigamy when he said: "Your remedy was perfectly plain,"—and he indicated the remedy. He then said: "That would have cost you £1,000. You may say to me, 'I have never had 1,000 pence.' But I am here as a Judge of the High Court of England to tell you that in this country. at any rate, it is our glory that there is not one law for the rich and another for the poor." The same point was put in shorter terms in my own early days at the Bar—that the Law Courts, like the Ritz Hotel, are open to everyone. That was my difficulty.

I thought that the priorities in extending legal aid were, naturally, the course that I have followed in the last six years and two months that I have had the honor to hold my present position. I thought that the first need was legal aid for the county courts, because it was useless to extend the jurisdiction of the county courts without extending legal aid. The next was for legal advice, first oral, and then written, because I felt that, once a system of legal advice was established, and people could be advised at the earliest possible stage, it might stop a lot of unnecessary litigation. I then thought it necessary to make the corrections in the income ranges which the fall in the value of money had necessitated. Fourthly, I thought it was necessary—and my right honorable friend, the Home Secretary, agreed with me—to introduce the rates that Parliament had thought right for criminal defences; fifthly, for civil cases in magistrates courts—and your Lordships who are magistrates know how difficult these husband and wife and affiliation cases are; and sixthly, for legal aid in the House of Lords. But I always have to consider the priorities, and that is my first difficulty.

This proposal would mean the State's embarking on both sides of litigation. Of course, this occasionally happens now, but it is manifestly undesirable that it should happen generally. A further difficulty would be that there would be less inducement than there is now to keep the cost of an action down; the conduct of the action would be uncontrolled. Moreover, it might tempt Area Committees, when considering applications for legal aid, to tip the scales in favor of granting legal aid to undeserving persons. I should like to say that, in my view, they have kept an amazingly high standard. One finds cases where they have been misled, but the number of those, if we take the whole of the last eleven years, is remarkably small.

As I have observed on a previous occasion, it is by no means easy to say what it is fair to impose on the general body of taxpayers and what chance the individual must take himself. The possibility of being sued unsuccessfully is one which has, of course, always existed. Since the Legal Aid Scheme came into force the poor person has merely been put in a better position, than he was formerly in, to start or defend proceedings in cases in which the appropriate Committee considers that it would be reasonable for him to do so. I still do not consider that it would necessarily—I repeat, necessarily—be right for the general body of taxpayers to pay the costs of the successful opponent of an assisted person, even when the unassisted person has won his case against his assisted opponent in the court of first instance and in the Court of Appeal. The argument for that may be put in this way: the assisted person has been put in the position of someone who is not impoverished and who is given the best available advice. It is such an opponent that the unassisted person is against. However, I am still much concerned about the matter and am proposing to consider it once again in the light of information from a survey which is at present being made for me in the Court of Appeal.

In the meantime, it is only right to remind your Lordships of two other factors, which are intended to avoid possible injustice to an unassisted litigant. First. Section 2 (2) (e) of the Act of 1949 enables the Court to make an order for costs against the assisted, person, which, however must not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the means of the parties and their conduct in connection with the dispute. I always hesitate to interfere with the discretion of the Judges, but, since I spoke about this problem on the Bill earlier this year, I have, as I then indicated that I would do, brought to the attention of the Judges the importance of exercising their powers so that assisted persons should pay such of their opponent's costs as they reasonably can. Secondly, an opponent of an assisted person is entitled to refer a case, to which he is a party, to the Area Committee, if he thinks that the assisted person has unreasonably refused a fair offer of settlement.

My Lords, I shall, of course, continue with my consideration. I think it would be a great pity if the general advance of advice and representation were to be retarded. I hope that your Lordships will allow me to have this Standing Order on my undertaking not to be weary in well-doing, but to go on with the consideration of the problems the difficulty of which I have tried to outline. I apologize again for having taken up your Lordships' time, but this is an important social problem to-day. It is one very much in my charge, and I hope that your Lordships will bear with me for having said these few words. I beg Ito move that the traditional Standing Orders be amended as shown on the Order Paper.

Moved, That the following new Standing Order be agreed to— ("Where a party to an appeal has applied to an Area Committee for legal aid, and the decision of the Committee has not been announced before the expiration of the periods of time limited by Standing Orders Nos. II, V or VI, such periods of time shall be extended until one week after the refusal of the application or the issue of a certificate."); In Standing Order No. V, after paragraph (3), to insert— ("(4) This Standing Order shall not apply to Appellants who have been granted legal aid.") —(The Lord Chancellor.)

2.50 p.m.


My Lords, I should like to say a word on this (matter, because I have been interested in it for some considerable time. Some time ago we had a debate on this subject, which the noble and learned Viscount on the Woolsack will remember. Of course, there is no objection at all to the Lord Chancellor's first proposal but, as he himself has indicated, there is a point with regard to the second proposal. That is the position of the unassisted litigant, who may, of course, be involved in considerable costs when an, assisted litigant comes up to the House of Lords.

I think two of the great legal reforms which were introduced by the Government led by the noble Earl, Lord Attlee, between 1945 and 1950, were the right of the subject to sue the Crown in tort, and the benefit of this Legal Aid Scheme which is now coming to fruition. I should like to congratulate the noble and learned Viscount on the way in which he has extended the legal aid system until to-day we have almost reached its final conclusion. There yet remains this one problem—that is to say, if a man has had legal aid and has been assisted by all of us, the taxpayers, and loses his case, the defendant in all probability will not, or may not, be assisted in any way, and he has to pay considerable costs as a result of the action which has been brought against him.

I agree with the noble and learned Viscount that, certainly in the county court or High Court, this seems to be unavoidable at present. But I have some qualification with regard to the House of Lords. It happens on the Continent, particularly in France, that where there is a point of law of great importance Which needs to be decided, that point can be taken to the highest court which is equivalent to the House of Lords, the Court de Cassation, by the appropriate judicial officers or the appropriate legal officers, and the Court can consider that point and arrive at a decision upon it, thus, of course, avoiding the necessity of a large number of cases being brought by people who may be affected by some ambiguity in the law. That has never been our system in this country, and in fact it is abhorrent to lawyers in this country who cannot conceive of points of law in abstract, as it were. Their whole training is such that they must have a concrete case to go upon, an actual case, before they can decide on the issue.

I think the noble and learned Viscount might consider, if he would—in fact, he says he will—this question so far as it affects the House of Lords. Any case which is brought up here, any case which gets a certificate under the Legal Aid Scheme, any case which has gone both to the High Court and the Court of Appeal, will be, in all probability, one of considerable magnitude. It will not only affect the particular issue at stake in the case, but it will affect many people and it will affect the law as it stands. It could be a leading case. In, those circumstances, it seems to me that there is a great deal to be said for the view that the public should stand the cost of such appeal to the House of Lords.

In other words, I do not feel it is right that some unfortunate man, who is brought up here unassisted, should have to stand the cost of what is in fact, in many cases, a clearing up of an ambiguity which we, as legislators, have allowed to be introduced into an Act of Parliament or have allowed to continue through not amending an existing Act of Parliament. To put it another way, to some extent an unassisted litigant may well have to pay heavily from his own pocket through some failing on our part as the two Houses of Parliament. Therefore, while commending, if I may respectfully do so, the objects of the noble and learned Viscount on the Woolsack, and certainly not in any way wishing to stand in the light of these Orders to-day, I ask him to bear in mind that particular point when he comes to consider the general question of costs.

2.56 p.m.


My Lords, I also welcome the introduction of legal aid in this House. I think that if we can devise proper safeguards it is a good thing. But my purpose in trespassing upon your Lordships' time this afternoon is to develop, I hope at not too great length, what I believe to be the injustice involved if the Standing Orders are amended in the terms of these proposals. I will concentrate first on the position of a respondent who is brought to this House by an assisted person.

As your Lordships have already been told, all appellants (with a very small exception which I shall mention in a moment) have to find security for £700 for costs, and all respondents are therefore protected, so that if they hold the judgment in this House they will be able to recover a sum which ought at least to go a long way towards paying their costs in this House. Now we are to make a breach in that. For the benefit of the Treasury, and for no other reason, we are going to put the respondent who is brought here by an assisted person in a very much worse position than a respondent who is brought here by anybody else. I have yet to learn of any other reason for this older as to security, except that it is in order to do justice to a respondent who is brought up here having won his case in the court below. But now we are going to say that, although justice requires that that should be kept in being with regard to the ordinary respondent, either justice is to go by the board or some different standard of justice is to be applied in the case of a respondent who is brought here by an assisted person.

My first question is: Why should we put a respondent in a worse position financially merely because his opponent is an assisted person? I am aware that there is one small exception to this rule. In the past, a few litigants have come here as poor persons, but in that case the respondent has at least the consolation that, with very minor exceptions, no costs are ever awarded in this House in a case involving a poor person. Therefore, although the respondent who is brought here by a poor person does not get anything if he wins, he does not have to pay the other side's costs if he loses. But now it is going to be "Heads I win, tails you lose." If the assisted person wins, then—unless some consequential alteration is made—the other party will have to pay his costs. But if the assisted person loses, nothing is payable at all. It is quite true there is a provision that costs can be awarded against an assisted person, but, of course, all possible exercise of that rule will have been made in the Courts below, and it is quite incredible that when an assisted person comes here he still has any funds out of which costs can be paid.

I understand, and I think it is right, that in the case of a legally aided person who comes here, unlike a poor person, the House fees are paid. I am told that they amount to something like £40—it is not very much. The fees of this House are going to be safeguarded: the Legal Aid Fund is going to pay that. But if it is also a condition of coming here that an appellant must not only pay the fees required in the House but also find security, why cannot the Legal Aid Fund find security? It is the duty of the Legal Aid Fund to pay money which is necessary to enable a person to prosecute his claim in any court, and if the Rules of this House require that security shall be found, then logically it is the duty of the Legal Aid Fund to find that security in order to enable the assisted person to pursue his claim.

It is a competition between a trifling saving for the Treasury—because there would not be more than one or two of these cases a year one expects—and what may be a very great hardship to one or two individuals. It does not in the least follow that the same rule must be applied here as in the Courts below. As a general rule security is not found in the courts below, but it is found here; and why the Legal Aid Fund cannot find the security here, when it is part of our Rules, without that opening the wider question, I just do not understand. The finding of security is as much a condition of coming here as paying the fees. But if it is a matter of amending the Scheme (it may require amendment), I would ask why the Scheme cannot be amended to enable that to be done, rather than amend the Standing Orders of this House. One or other must be amended, I agree. But why not the Scheme?

If your Lordships will bear with me a moment, I should like to say a little about the wider aspects of this question which my noble and learned friend on the Woolsack has mentioned. There is no doubt that there is a great deal of criticism and a good deal of hardship involved at present in an assisted person suing a person of very limited means. I am not quite sure what the upper limit now is for being admitted as an assisted person, but it is not very high, and there are a number of people who may be sued and whose means are very moderate. It is perfectly true that the Courts of this country ought to be open to everybody, but they are not open to-day to the opponent of an assisted person who is of moderate means himself. Observe what he has to contemplate. Even before the extension of this Scheme to the House of Lords he has to contemplate this situation. He may win in the first Court at the trial Then he may be taken by the assisted person to the Court of Appeal, and he may lose. In that event he has to pay the whole costs of both sides, and he does not have the advantage of getting anything if he wins—or, at least, anything substantial. So I think it is perfectly plain that to the person just above the assistance limit the Courts of this country are closed.

Why should that be, my Lords? I raised that matter in this House when the legislation was first going through in 1949. I did not expect to get a very favorable answer then, because the Scheme was new, money was short and the Government of the day were perfectly entitled to say, "This is experimental and we must learn as we go on". And I think that that is what the late Lord Jowitt, in effect, said. I thought that, having raised the point, I could do no more. But time has passed. A great deal more expenditure has been embarked upon in this Scheme—and quite properly. It has been extended, as my noble and learned friend has said, on many occasions. But not the slightest attempt has been made to alleviate, let alone abolish, this (as I call it) injustice, and it appears to me that the time has come when we ought not to continue this injustice and at the same time continue extending legal aid from one sphere to another. The money has been found for other things. We are told that the cost would be only £200,000 if one took in the whole of the High Court procedure. If an extension is made to this House—which it appears to me is a proper extension—before going on to deal with the whole question, it is not a matter of thousands; it is a matter of hundreds of pounds a year. And yet, as I say it may cure a very serious injustice in certain cases.

Observe what happens. I said a moment ago that the defendant sued by a legally aided person must contemplate being taken to the Court of Appeal and then perhaps losing and perhaps even being ruined. Now every defendant has to contemplate something worse than that because nobody can tell in what cases points proper to come before this House may arise. We had two running-down cases here the other day—cases of the most ordinary kind. Therefore almost any defendant has to say to himself, "Now if this goes through, I may win at the trial and an important point of law may emerge. I may win again in the Court of Appeal, but the point may be so important it is brought to the House of Lords. I may lose there and then where am I?" Really, my Lords, it does seem to me that this goes far beyond the two or three defendants who are brought here. It affects people who are trying to litigate and defend their rights against assisted persons all over the Band. And yet for the sake of a few hundred pounds this additional worry is to be put on everybody.

There is no doubt that we who are Lords of Appeal in Ordinary have recognized this kind of situation, because it has been customary for some time to put appellants on terms (I am not talking now of assisted persons but about ordinary litigation); that is to say, when a person of moderate means has won twice in the Courts below it has now become very common, and I think very proper, to say to a person who attempts to appeal to this House, "Well, you have a case which is deserving of consideration in this House, but you must undertake either not to ask for the award of costs against you in the Court below to be reversed, or (in addition, perhaps) not to ask for costs in this House if you win." Sometimes we go even further and we say to a prospective appellant, "You must undertake if you are to come here "—it may be a test case or something like that—"that you will pay all the costs in this House, win or lose."

I want to ask my noble and learned friend how far the Appeal Committee or the Court of Appeal are still free to impose terms of that kind. I shall not be surprised if I am told that we can no longer impose the last alternative; that we can no longer say to an assisted person, "You must undertake to pay all costs in this House, win or lose". Can we say to an assisted person, or can the Court of Appeal say to him, "If you go to the House of Lords you must undertake not to ask for costs in that House and not to seek to disturb the award of costs in favor of your opponent in the Court below."

That would be some alleviation, because I should hope that in granting leave Courts would consider widely—as they always should and, I think, do—the hardships involved. And if it is proper (and I hope my noble and learned friend will say that it is) for the Court of Appeal or for the Appeal Committee in this House to say to an assisted person, "Now you must undertake not to try to disturb the award of costs in favor of your opponent in the Court of Appeal and you must not ask for costs in this House", that will go quite a long way to get rid of the trouble. It will not get rid of the whole trouble, but it would at least make the thing a little clearer. Because at the moment, as I say, it is all loaded in favour of the assisted person—that is, in favour of the Treasury—because they get costs on a win and they lose nothing on a loss. I hope that my noble and learned friend will be able to give some comfort in that respect, even if he cannot withdraw this Standing Order. I hope that he will be able, even if the Motion goes through to-day, to restore the Standing Order at an early date.

One other thing I should like to say. I should like to support the noble Lord, Lord Ogmore, in his plea that public funds should be regarded for appeals to this House as—I do not say, universally available, but available in proper cases. Cases come here only in the public interest. Nobody is allowed to come here merely on his own merits. Cases come here because a point of law is involved which it is in the public interest should he cleared up one way or another. That appears to me to afford an additional reason for not putting the penalty on the opponent of the assisted person, but putting the penalty where it ought to be, on the Legal Aid Fund.

There are two other matters I should just like to mention. We have been embarrassed on occasions by a respondent not appearing to defend his judgment. Your Lordships will be aware that this House never reverses a judgment of a court below without hearing full argument, whether the respondent is here to defend his judgment or not; but it is extremely embarrassing to find that the respondent is not represented and only one side of the case is presented. I Mould not be in the least surprised if the opponent of an assisted person, with this prospect in front of him, were advised, "Your best plan is not to incur expense in the House of Lords, because you cannot get it back if you win". We may very well find that embarrassments of that kind occur which could be avoided if this Standing Order were not passed. Indeed, it may defeat its own object, because a court may very well be less willing to grant leave when they see the injustice involved if leave is granted, and it may be that proper cases which would otherwise come here—the court has a discretion whether to grant leave or not—will not come here at all. This appears to me, if I may say so, to be spoiling the ship for a ha'porth of tar. That is what it comes to. In effect, the dilemma is this: if doing something to assist the opponent of an assisted person is going to cost very little, why not do it and save such hardship as there is to a few people? If it is going to cost a lot, that means that there is a great deal of injustice going on, and therefore still more we ought to do something to alleviate that injustice.

I was glad to hear my noble and learned friend saying that this matter is being reconsidered. I hope it will be reconsidered, with effect, at an early date, because I fear that some of these cases will be coming up here soon, and what I we have to think about is the advice which is going to be given to people who have good cases but are afraid of going on against an assisted person because they are fighting the whole wealth of the Fund. Unless something is done very soon, it may well be that a number of people whose rights ought to be defended will not be defended. I am sure nobody wants that. But to return to the immediate point that I have in mind, I would, if I may ask a rhetorical question, ask: can it be denied that the only reason for asking security is to do justice to respondents? If it can be denied, what other reason is there? If it cannot be denied, why are we asked to do injustice to those few respondents?

3.15 p.m.


My Lords, I would add only a few words. I am conscious that I may be told by the noble and learned Viscount on the Woolsack that I took a different view some six years ago when I occupied the place which he now occupies. I am far too old to be either afraid to change my mind or to be ashamed of doing so. It appeared to me that my noble and learned friend Lord Reid made a powerful and quite unimpugnable case. To me it appears nothing less than a monstrous injustice that a legally assisted person should come to this House after having lost his case perhaps in two courts below, and then be exempt from all responsibility to his still successful opponent. I see no justification for that at all.

There is only one thing in the observations of the noble and learned Viscount on the Woolsack which struck me, and that was—whether he used the word or not—that I think he hinted at that fatal subject "repercussion", which we hear so much about: if you do this, then something else will require to be done. I think that appeals to this House stand on a footing of their own, and there is no reason to fear that to do justice in the way which my noble and learned friend has suggested in this House should necessarily have any repercussions If it does, it would have repercussions in favour of justice being done, net only here but in the courts below. I heartily endorse what my noble and learned friend has so forcefully said, and I hope that favourable consideration will be given to this subject.

3.17 p.m.


My Lords, I am sorry that I did not hear the observations of the noble and learned Viscount the Lord Chancellor in introducing this Motion. I did not appreciate that it was on the Order Paper, otherwise I should have been here. Therefore, I would not have taken part in the discussion but for the speeches of the noble and learned Lords which we have just heard. With a great deal of what they say I am in complete support and sympathy, as indeed I imagine everyone must be who appreciates the position of an unassisted person being brought to the courts, perhaps wrongly, and eventually succeeding and not being able to get his costs. But I would point out to both noble and learned Lords that there is nothing unique about this. This does not happen necessarily as the result of legal aid. I suppose started my legal career at roughly the same time as the two noble and learned Lords who have just spoken—


Long after me.


Not so very long— and my experience goes back to times when impecunious plaintiffs started proceedings against insurance companies and against people who had means, and carried them right through, not necessarily to the House of Lords but to the Court of Appeal, knowing that they could not possibly pay the costs if they were unsuccessful; and, indeed, the defendants realized that, and often settled actions because it was cheaper to do that than to fight them and succeed. There is nothing new at all in impecunious persons taking proceedings. It has been regularized to a certain extent by legal aid. Not every impecunious person took proceedings, even if he had justice on his side. A good many—that was the justification for legal aid—were not able to take proceedings, and have been assisted.

I should like to have some record—I do not know whether the noble and learned Viscount gave us those records —of the number of legally-assisted people who succeed in their actions, as against the number who do not. My impression is that a very high percentage of legally-assisted people are justified in getting legal aid and succeed in their cases. But I recognize that there can be a hardship on an unassisted person who, succeeding both in the court of first instance, possibly to-day the county court, and in the Court of Appeal, then finds that he has to bear the costs by himself, and gets no assistance at all. I recognize that that person may be little better off than the assisted person. I also should be in favour of this matter being carefully considered to see whether in some way, in proper cases, the cost of a successful defendant can be met out of the Legal Aid Fund. I understand that the noble and learned Viscount has given an assurance that that matter will be looked into.

My real reason for rising is the speech of the noble and learned Lord, Lord Reid. I do not know whether I understood him correctly, or misunderstood him, but he seemed to imply that the House of Lords might be influenced in considering whether a case was one which was worthy of being considered—whe there it was, to use his own words, "a case where an important question of law was being decided for the public benefit"—not by the merits of the case at all but by the question of who was eventually to pay the costs.


My Lords, I certainly think any court moist he influenced by hardships they are going to do by reaching a certain decision; and if they are not able to adjust financial matters to prevent gross hardship I should personally regard that as a perfectly good reason for refusing leave.


My Lords, I absolutely join issue with the noble and learned Lord on that matter. I think it is completely wrong. While I do not want to use unduly strong language about it, I believe the business of the Law Lords is to consider whether a case is a proper case to be considered by them, having regard to the questions at issue and the points of law involved, and not having regard to the means of the respective contestants.


My Lords, might I ask, the noble Lord, Lord Silkin, if he disapproves, then, of the practice that has grown up in this House of requiring an undertaking from appellants with regard to costs before they are granted leave?


My Lords, I do not approve. I thought the noble and learned Lord was asking the noble and learned Viscount who sits on the Woolsack whether that is a proper procedure; and my own personal opinion is that it is not. I believe that everybody ought to have access to the courts in proper cases where an important question of law has to be settled. It is for the Law Lords to decide whether it is a proper question to be settled, and once they have decided that it is one which ought to be considered by them then I feel any question of costs and who should bear them is quite irrelevant. Nobody should be deprived of the opportunity merely because he may not be in a position to pay the costs. But I recognize that, in many cases that gives rise to hardship, and I would join with the noble and learned Lord in asking the noble and learned Viscount who sits on the Woolsack to give consideration to this hardship. But, in the meantime, I hope that Petitions to the House of Lords will not be decided on the basis of the means of those who come before them.


My Lords, surely the answer to Lord Silkin's first point is that although it is perfectly true that in the old days the successful respondent might suffer at the hands of the impecunious appellant, to-day the position is much worse, because under the Legal Aid Scheme as it stands it is virtually certain to-day that the successful respondent will suffer because of the impecunious appellant. That is the trouble: that while this could happen in days gone by, it almost invariably happens when these matters arise to-day.


My Lords, if a plain man who knows nothing about English law may put in a word, may I say that it seems to me that the issue which has just been raised between the noble Lord, Lord Silkin, and the noble and learned Lord, Lord Reid, shows how crucial the injustice is likely to be; and the injustice is not mitigated by calling it hardship. I hope that the noble and learned Viscount on the Woolsack will be able to reconsider this matter.


My Lords, this discussion has got on to a very wide plane and I hope we shall keep it confined to the more narrow issue which the noble and learned Viscount raised in the Motion he has moved. I feel, with my noble friend Lord Silkin, that we want to be rather cautious about this matter. The suggestion that people might be deprived of the opportunity of having an important question of law decided by this House, either on the grounds of the financial position of the appellant or because the respondent chooses to absent himself from attending this House to defend the appeal, seems to me to raise a very wide issue which wants to be considered with a great deal more leisure than is available to-day.

3.28 p.m.


My Lords, may I first thank the noble Lord, Lord Ogmore, for what he was kind enough to say about me, and proceed at once to his point. The suggestion he has made, which was really that I should tackle the solution of this problem from the point of view of important litigation —that is, the question of whether the costs ought to be paid for by the public —touches a most important aspect of the matter. The noble Lord was supported by my noble and learned friend, Lord Reid, and I shall certainly do that. Analogies are always dangerous, but the noble Lord, Lord Ogmore, will remember that I have approached another problem in that way, increasing the right of appeals to the House of Lords in criminal cases and trying to find the right formula for important litigation. I will certainly do that and it will be part of the consideration which I have already promised.

My noble and learned friend, Lord Reid, made a powerful speech, but as he ranged a little widely I believe your Lordships ought to have in mind that the assisted person does not rely solely on the funds of the State. It is a triple matter. The State contributes; the person himself contributes on a carefully worked-out scale, and the legal profession contribute by taking lower costs. I should not like those of your Lordships who are not lawyers to feel that this was entirely a matter of State help. It is a triple operation and, thanks to the extraordinarily good Legal Aid Advisory Committee that I have (I do not mean the local committees who decide applications) who advise me on the working of the scheme, presided over by my noble friend, Lord Bridgman, your Lordships can see from that the high quality of that Committee They can help me on such points as the limits of the scheme and the amount that should be paid.

But where I join issue with my noble and learned friend Lord Reid in my approach to the matter—it does not affect the reconsideration which I have already promised—is that I think it is important that people should have access to the courts with all the assistance that the legal profession can give them. I have a keener feeling for the injustice that happened to people who could not come to the courts in the past than my noble friend has. I take a very simple definition from my point of view as a lawyer of a civilized society: at the end of the clay, when people do not agree as to their rights, either the one can say to the other, "All right, I will sue you"; or the other can say to the one, if I may use a colloquial phrase without offence, "Sue me and be damned!". Until people are in a position to do that, I do not think my profession is offering the service to the community which it should.

My noble and learned friend Lord Reid talked of the in forma pauperis procedure. Of course we have all been glad of it in the past; every lawyer in this House has taken his share in that procedure. But I do not think that it was satisfactory, and it was because it was not a satisfactory procedure that the Rushcliffe Committee, presided over by our old friend, came to the conclusion that the Legal Aid Scheme should be evolved. The other point that I think my noble and learned friend (if he will allow me to say so) overstressed was this. He said that every defendant or, I presume, every plaintiff who is in contest with the legally-aided person will be afraid of the matter coming to the House of Lords. Over the last, I think, 26 years one could not in England come to the House of Lords without getting leave, either from the Court of Appeal, or, if the Court of Appeal refuses, from the Appeal Committee of the House of Lords; and both the Court of Appeal and the House of Lords consider whether the point or the case is of sufficient importance that it should come to the highest tribunal. So we are really limited to that form and to that class of case.

The difficulty, as I tried to put it quite frankly in my opening remarks, was that on the one side you must see that people who are poor or of moderate means, or whatever you like, are adequately advised and represented. The danger, as the noble Lord, Lord Silkin, pointed out, of being sued by an impecunious person has always existed. It must exist, because impecunious persons have rights and the law is not an exact science. All of us in this room have given people advice that they will succeed in cases in which they have failed—every lawyer has, however great his learning or his position. And when the law is not an exact science there is always the possibility that someone will bring proceedings, and in the eyes of 49 per cent. of the legal profession he is right while 51 per cent., including the person who may form the majority in the House of Lords, think he is wrong. In these circumstances, unless impecunious people are going to be barred from the courts, the danger must exist. The question is: how can we mitigate it? I gave the objections I have seen, and no one has seriously controverted them, to making every case financed by the State on both sides.

My noble and learned friend Lord Simonds put a different point. I assure my noble and learned friend that, however often he changes his mind, every opinion to which he returns will receive equal respect and attention from me. My noble and learned friend has put a different point. He has said that cases that come to the House of Lords judicially are sui generis and if we were to give financial support in these cases it would not have repercussions on cases in the Court of Appeal or the High Court. That is a very difficult point. I am willing to consider it. That is another angle of approach. It is approximate to but not quite the same as the point of the noble Lord, Lord Ogmore, but of course I will consider that as well.

But on the general position I ask your Lordships to remember my point of view. I will try to mitigate the difficulties that arise. But if your Lordships approach this subject on the terms that there is injustice if someone fights an assisted plaintiff and wins, well, that is one point of view. If your Lordships do that, However, remember at the same time the injustice that would be done to many poor people—and not only poor people in the old sense but people of moderate means who come up to a considerable income rate to-day—if we were to take away these means of establishing their rights. My Lords, I am very happy to consider this matter again; I will do my best. I put the difficulties before your Lordships; your Lordships will be good enough to put suggestions to me. I hope that your Lordships will take it that I will consider every suggestion and see whether a solution that is generally accepted can be found. In the meantime, I ask your Lordships to accept my Motion.

On Question, Motion agreed to: the said Standing Orders amended accordingly.

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