§ 4.49 p.m.
§ Lord DARLING of HILLSBOROUGH
My Lords, I beg to move that this Bill be now read a second time. Before I try, briefly, I hope, to explain the purpose and provisions of the Bill, I should say a word about its progress to your Lordships' House. It was originally promoted by the Consumers' Association, particularly by the legal officer of the Association, Mr. Tench, in response to an obvious increase in court cases that were being conducted by litigants acting on their own, especially in the field of consumer protection. It was first presented in another place by Mr. Richard Luce, a Conservative Member. Unfortunately it fell at the dissolution of Parliament last February. It was then re-introduced by a Labour Member, my right honourable friend Mr. Bottomley; so it has all-Party backing. Indeed I understand that it is supported by the Law Officers and I hope by my noble and learned friend the Lord Chancellor—certainly by the Law Officers in the other place in the present Government and in the previous Government Therefore, it has an impeccable pedigree.
The main reason for the Bill is that over a fairly wide field of civil actions in county courts in England and Wales—and, I understand, in sheriff courts in Scotland—complaining persons who are seeking redress are being officially encouraged to prepare and conduct their own cases without the assistance of solicitors. Indeed, the noble and learned Lord, Lord 1061 Hailsham of Saint Marylebone, when he was Lord Chancellor, got his Department to provide a very good guide to people who wanted to conduct their own cases in the courts. We must take note of that official encouragement. The Consumers' Association has produced an admirable booklet on how to sue in the county court; and legal advice centres and consumer advice centres are also engaged in this work. There is plenty of legal advice available to the litigant who wants to go ahead on his own. If he does so, if he follows all this advice and encouragement, he is at a financial disadvantage. If he succeeds in the conduct of his case and is awarded costs in the court, he is not allowed, by long-standing rule, to include in those costs the expenses he incurred in preparing his case and presenting it in court, other than the out-of-pocket expenses that he would get for attending the final court proceedings.
The sponsors and supporters of this Bill contend that is exceedingly unfair to the person who has been encouraged by the law officers, by the Lord Chancellor's Department, by the Consumers' Association, and so on—even, in many cases, by solicitors themselves—to conduct his own case. The Bill seeks to remedy that unfairness. It is needed for two important reasons. It is needed in the field of consumer protection, because in our present complex trading system consumers can be caught in financial losses through buying, for example, domestic appliances that do not work properly, that break down, or buying goods that turn out to be faulty, or paying for services, say to a garage for repairs and maintenance on a motor car, that turn out to be inadequate, thus leaving the poor consumer with a useless piece of merchandise. The majority of manufacturers and traders who value their good will replace faulty goods or recompense customers who have bought them, customers who have real complaints. But even if the minority of cases is only 1 per cent. of all the millions of trading transactions that occur every week, the number of such cases where redress has to be sought in the courts is very large. I am sure with all the advice and encouragement to litigants to go ahead on their own, the number of such cases will grow.
1062 Most of these cases are not exactly welcomed by solicitors. The case usually involves a sum, even if the case is won and costs are awarded, which seldom covers the value of the work carried out by the solicitor on the case. It simply does not pay solicitors to deal with most of the cases. The time and work spent on preparing a case involving a faulty article worth £100 is not much less than the work which has to be carried out on a £1,000 or £2,000 motor car that has broken down and the purchaser wants the solicitor to help him get his money back. Now that so much legal advice is available to the "do-it-yourself" litigant—if I may so call him—solicitors are also encouraging people to conduct their own cases. The solicitors themselves are joining in the encouragement if it seems that the person concerned has a reasonably good chance of winning.
Much of the work that has to be done in preparing a case to be conducted by a solicitor needs to be done by the plaintiff. He has to produce the appropriate documents, sales slips, guarantees, correspondence with the trader, and so on. Usually he has to write out a full account of the transaction about which he is complaining, so the additional legal work required to complete the case can, with proper advice, be carried out by himself. Much of the work involved in preparing the particulars of the claim, issuing proceedings, serving notice on the defendant firm, preparing documents, attending the court for papers and the pretrial hearings and all the other work, takes up a great deal of time. If the litigant wins and is awarded costs, the expenses he has incurred in all this work should, we believe, be recoverable in the costs awarded to him. Moreover, there is another point in helping the litigant in person. one which I hope will be accepted. Because of the changes which have been made in the county court procedures, there will be a great increase in the number of cases settled by arbitration. There is no reason at all why a great deal of legal expenses should be involved in preparing a case for the registrar of the court who, under the new arrangements, can act as the arbitrator and decide whether the litigant is entitled to damages and costs and how they should be provided.
There is a second important reason why I say the Bill is needed. This was 1063 expressed far better than I can express it by the noble and learned Lord, Lord Hailsham of Saint Marylebone, a week ago, when we were discussing the increase in legal aid assistance. If I may quote the noble and learned Lord, he said.… our legal services provide the services free for only a tiny segment of the population, broadly speaking those who are actually on supplementary benefit; and the contributory aid, that is to say, aid partly provided for by the State and partly provided for by contribution from the person's own pocket, is only, I suppose I must say, a moderately larger segment of the population."—[Official Report, 12/5/75; col. 538.]He went on to say, at column 539:… sooner or later, my conviction is that legal services which consist in providing complete aid only for those on supplementary benefit or thereabouts, and partial aid only for those in a very small band above that, are not very satisfactory and in the end somebody will have to introduce a scheme by which legal services are available either by insurance or on a more generous scale.What I suggest is really needed in the field of consumer affairs is to ensure that the legal advice available to litigants who want to appear in person is satisfactory and that the courts understand and accept. as I am sure they do now, that the litigant in person is someone to be helped to get satisfaction if, on the facts of the case. he is really entitled to it, and that he should be encouraged to go ahead.
For all these reasons, cases conducted by the litigant in person will undoubtedly increase in number. Therefore we believe it to be wrong in these circumstances to continue the present unfair discrimination against the person going it alone in respect of costs and expenses. It is surely decidedly unfair to say to him, "You have been encouraged by the highest legal authority in the land to be your own lawyer. But when you have won your case and been awarded damages and costs, we intend that you shall still be out of pocket because we are not going to allow you to recover the expenses you incurred in preparing your case." We must remove that unfairness.
There is an argument which was put forward when this question was tested a few years ago in the Appeal Court. The distinction between a solicitor acting on his own who gets his expenses paid, and a non-solicitor, a non-legal person or, in the words of the judgment of the court, "a person who is not a skilled legal 1064 person ", was, I think, made on the grounds that because the litigant in person is not a skilled legal person, he is not entitled to legal expenses. With all the advice now available to the man who conducts his own case, such a man becomes—admittedly, within a very narrow and specialised range of law—a skilled legal person. Generally speaking, all he probably needs to know about the law governing his claim are two of the crucial sections, Sections 13 and 14 of the Sale of Goods Act, which cover most of these cases. In addition, of course, he needs to know the procedure involved in bringing his case to court so that the distinction between the solicitor and the layman with regard to expenses is surely now on the way to disappearing, if it has not completely gone already.
Turning now to the Bill itself, obviously questions arise about what is meant by "recoverable expenses". The Bill refers to, "any expenses and losses incurred and to work done ". When the Bill was being considered in another place, there was some disagreement about what could or should be included under the heading of "work done". It was accepted that the words covered the cost of preparing documents, issuing summonses and so on—what I would call, for the sake of of brevity, "clerical work"—but whether it also covers loss of earnings by a person taking time off from his job to go to the the court, to issue the summons, attend the pre-trial review, see witnesses and so so on, is doubtful.
Although there was some disagreement during the preparation of the Bill as to whether a man could cover an allowance for time and labour spent on the job as well as for loss of earnings, this concept of compensation for what might be called "leisure-time work" seems to have been accepted and is now implicit in the Bill. To clarify the position over loss of earnings, the words "or losses" were added during the progress of the Bill in another place. As I am sure my noble and learned friend will remind me, these words were only guides offered to the Rules Committees of courts, as expressions of Parliamentary opinion to be taken into account by those committees in the calculation of costs and expenses for a successful litigant in person. But I think there is no doubt about the attitude of 1065 at least the majority of the Members who took part in discussions on the Bill in the other place, which is that some payment for leisure-time work should be included in the rules.
Finally, I am quite convinced that this Bill will not encourage the vexatious litigant or the person with a deep-rooted grievance who, having been told by solicitors that he has no case, goes on pursuing it and causes a lot of trouble. After all, the Bill will only reimburse litigants who succeed and the litigant who loses will have to pay his own expenses and probably also the costs of the other side. So I do not think there is any substance in the suggestion which I believe has been canvassed, that the Bill will encourage vexatious litigation.
This Bill, although it contains two clauses, is really a one-clause Bill and it is in four parts. The first part of Clause 1 sets out clearly what the Bill intends, which is to reimburse the litigant in person for his expenses in the conduct of his case. It is phrased so as to cover the courts' proceedings in England and Wales. Subsection (2) slightly alters that to deal with the situation in Scotland; and subsection (3) says that this can also be applied to Northern Ireland. Clause 2 really follows up what is implicit in the first part of the Bill—in other words, that it is the rules committees of the various courts which will decide how to put the principle of the Bill into operation. When those decisions have been taken by the various committees, the noble and learned Lord the Lord Chancellor will decide on the days on which the Bill as a whole, or the separate parts of it, shall come into operation.
The Bill will make no difference, I suppose, to the present situation in which small claims for sums under £75 have no legal costs attached to them. The litigant who is dealing with a claim of under £75, even if he spends some money as he obviously must, will recover only a small sum, if indeed he recovers anything at all. I understand there is some disagreement about the wording of Clause 1(2) as to whether "outlays and losses incurred" should be applied to Scotland and whether that is really what we intend in the Bill. I do not know whether it will be necessary to amend the Bill, or whether an expression of opinion about 1066 the alteration of the rules in regard to litigants will overcome that difficulty, if it exists. But I hope we can come to amicable agreement about this point.
I should like to deal with one final point by posing a question to the noble and learned Lord the Lord Chancellor as to whether, in view of the proceedings which are bound to develop at the Lands Tribunal it would be desirable, in all the circumstances, to extend the provisions of the Bill at some time—and I do not know whether this can be done during the course of the general proceedings in your Lordships' House if there is general agreement about it—to litigants who appear before the Lands Tribunal. I have studiously avoided some of the legal arguments which arose in another place, for reasons which are apparent when one looks at the speakers who are to follow me. My Lords, I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Darling of Hillsborough.)
§ 5.8 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, may I say at once that I welcome the Bill and should like, on behalf of the House, to congratulate my noble friend Lord Darling on the felicitous way in which he has introduced it. He brings to the subject his distinguished Ministerial experience, particularly in the consumer field. It is indeed a splendid thing that he has taken over the Bill for introduction into this House. We have been waiting for it patiently. It has taken a long time coming and I am happy that it has now come.
The Bill is different in its content, but not in principle, from when it was first introduced. The principle has been clearly explained by my noble friend. The intent is, as he has said, that the litigant in person who wins his case should be put, as far as possible, in the same position as a represented litigant, and should be able to recover his costs. In effect, this Bill will reverse the longstanding rule, affirmed in this House in the case of Buckland v. Watts, that the litigant in person cannot recover in respect of the work he does in preparing his case for court.
1067 The number of litigants in person coming before the courts is continuing to grow. There have always been those who, for reasons good or bad and with cases good or bad, have wished to go to the court themselves and to do so without legal representation. However much we improve the availability of legal services, we shall not—and I do not think we should try to do so—stop the inherent right of any man or woman to present his or her own case in court. In spite of the old adage that the man who appears for himself has a fool for a client, many litigants in person have scored some remarkable successes. I am delighted to see that the noble and learned Lord, Lord Denning, is to speak this afternoon, and although I am not inviting him to pursue this theme—patient and forbearing as I have known him so often in the Court of Appeal to be with litigants in person—I am sure that if he thought fit he could enlighten us on this matter. But whereas some litigants in person have succeeded, others have failed lamentably and, as my noble friend has said, the cost of doing so could be considerable indeed—what they themselves have incurred and of course the costs for the successful party—especially in the High Court.
No one should be forced to seek the help of a lawyer, but equally nobody should be discouraged from doing so, because in the considerable majority of cases the help of the lawyer is needed for the conduct of litigation. But there are some cases where I think it may well be better for the litigant to act himself, partly because in the case of small claims it would be quite uneconomic to employ a solicitor; and it is gratifying that changes in procedure have been made to make his task as easy as possible. In the county court the procedure for small claims has now been made very simple, with a view to enabling the litigant in person to take his own case. The system is being increasingly used and two-thirds of the cases formerly tried by registrars in the county court now go to arbitration before the registrar under the new simplified procedure.
To remove the fear of having to pay the other side's legal costs if the litigant loses, the rules provide that in cases under £75—and it may well be time to increase that figure—no legal costs may 1068 normally be allowed other than a very small sum for issuing the summons. I should not in these small cases like to replace the fear of high and disproportionate legal costs with the fear of having to pay the costs of the litigant in person, and so in these small cases I share the view of those sponsoring the Bill that the no-costs rule should apply to all costs, be they of a solicitor or a litigant in person. This will still, however, leave a large field where this Bill will, I believe, make a positive contribution. These are the larger cases in the county court, all civil cases in the High Court and divorce cases. The House may be interested to know that, in a recent week, of all divorce petitions filed at the Principal Registry office in London one in seven were filed by litigants in person.
To assist the litigant in person my Office already issues a booklet, Small Claims in the County Court. which explains the simplified procedure. I understand that the Consumers' Association has done likewise. A further very helpful advance has been the provision of draft particulars of claim at every county court, which require the litigant in person for standard situations only to complete the answers to some simple questions to give his opponent and the court an outline of the case. For those embarking on their own divorce petitions "self-help divorce" may not be an entirely felicitous expression, but for those so seeking divorce there is also a booklet to assist them. My Office is currently preparing a booklet on enforcing a judgment after it has been obtained. However, in this context I should sound a cautionary note that, however just one's claim, there is no point in pursuing a man successfully who is not worth powder and shot. I occasionally find that I receive complaints from successful litigants who have won their case unfortunately the defendant has not a farthing to his name, and then they ask me why it is that I do not ensure. by provision, if necessary, of public funds, that the court's judgment is duly enforced. Unfortunately, even in the days of a generous Welfare State I do not think that we can go quite so far as that.
The Bill does not seek to do more than state the principle that a litigant in person who wins his case should, so far as possible, be able to recover his costs. The 1069 detailed provisions are to be made, as has been said, by rules of court. The rule-making authorities in all three jurisdictions will have what I think is conceded to be a difficult task in deciding on the general guidance they must give in order to ensure uniformity to the taxing officers in all the courts. In England and Wales the rule-making authorities are the Supreme Court Rule Committee, the Matrimonial Causes Rule Committee, and the County Court Rule Committee. There are similar bodies in Northern Ireland and also in Scotland to which the Bill will apply. Indeed, the fact that it applies to Scotland accounts for the separate provision in Clause 1(2), with the use of the language familiar and used in Scotland. The rule committee there will also deal with these matters. The Supreme Court Rule Committee consists of the Lord Chancellor as Chairman, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, a Lord Justice, two puisne judges, two practising barristers and two practising solicitors. So there is a good deal of experience and, I hope it may be thought, expertise in that body for dealing with these difficult problems.
It may be helpful if I briefly put the Bill in context. At present, as my noble friend has said, the litigant in person can get his out-of-pocket expenses. That means that his costs of travelling to court will be paid, and indeed since two fairly recent decisions, Malloch v. Aberdeen Corporation and McKenzie v. McKenzie, his position has much improved. in 1973 the Chief Taxing Master of the Supreme Court issued guidance to all taxing officers so that a litigant in person will at present recover, first, the costs and fees of any solicitor and counsel whom he properly employs to advise him in the conduct of the proceedings; secondly, the expense of any expert properly employed; thirdly, the cost of his own attendance as a witness and the fees of witnesses whom he may call on his own behalf; then, the cost of typing and reproduction by any process of copies properly made for use in the proceedings; his own out-of-pocket expenses for travelling on a proper occasion, and, finally, any other out-of-pocket expenses properly incurred.
1070 Your Lordships will see that no provision is made in that list for preparing or arguing his case in court, and that is the great step forward of the Bill. In even a small action in the county court, above the financial limit of £75 at which I have indicated no costs should be allowed, there is, as my noble friend indicated in his speech, a considerable amount of work to be done. There will be many occasions where he will have to visit diverse places and equip himself to argue his case at the hearing. For none of these things will he presently be recompensed.
As my noble friend has indicated, there is one matter of principle which the authorities will have to decide. It is the question whether the litigant in person should recover as "costs" a sum in respect of work that he does in his leisure time. This must be a matter for the rule-making authorities with their long experience of court procedure. However, I think I should remind the House that costs are in the nature of an indemnity. They cover only the pecuniary loss suffered by a party in litigation. Even so, they are not always a complete indemnity because the costs recoverable from the unsuccessful party are, in the words of the Rules of the Supreme Court,Only such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs have been taxed ".This means that in most cases where the litigant is legally represented the solicitor delivers a bill to his client, known as a solicitor and own client bill, for further costs which are not recoverable from the other side. This is a constant source of disappointment, I fear, to the litigant.
In considering whether to allow the litigant in person to recover for "work done "in his leisure time, the rule-making authorities will obviously have to consider whether, and to what extent, the indemnity principle should be breached. The difficulty of assessing what a litigant in person should recover by way of costs would be far greater if he had, in fact, suffered no financial loss by which it could be measured. I am sure we are all agreed that this Bill should not put the litigant in person in a better position than the represented litigant, but it is for consideration whether allowing him a sum for work done in his leisure time, in 1071 respect of which he suffers no pecuniary loss, would not produce that very result. I am sure that noble Lords will appreciate the heavy burden which will have to be carried by the rule-making authorities in considering the several problems which the Bill creates, but I believe that they are in the best position to solve them.
In conclusion, the House may care to know that we as a country are not alone in moving forward in this field. The Law Reform Commission of British Colombia are about to present a report to their Legislature with a view to legislation on very similar lines to this. South Australia has also decided to embark on similar legislation. And when, with the leave of the House, I was recently in New Zealand, they, too, indicated that they had similar ideas in mind.
My noble friend asked whether extension of the provisions of the Bill to proceedings before the Lands Tribunal is being contemplated. It will certainly be given the most sympathetic consideration, and I may well have something further to say on that matter at the later stages of the Bill. With the assistance of the sponsors, a number of improvements were made in another place by the Government, and I consider that the Bill is now in a form which properly can go on to the Statute Book. There are matters of detail, and in so far as these need further discussion we can certainly examine them closely at a later stage of this Bill, which I warmly commend to the House.
§ 5.24 p.m.
§ The Earl of MANSFIELD
My Lords, may I commence by congratulating the noble Lord, Lord Darling of Hillsborough, on introducing this Bill to your Lordships' House and, if I may say so, for the charming and non-contentious way in which he introduced it. Indeed, it is a Bill which will commend itself to all parts of the House, in that it removes an anomaly which has existed against the interests of the litigant in person for, some would say, far too long. If it is in order, perhaps a measure of congratulation is also due to the noble and learned Lord on the Woolsack and also to his predecessor, my noble and learned friend Lord Hailsham of Saint Marylebone, for the impetus and help they have given to the Bill and its sponsors.
1072 Speaking as an erstwhile practitioner, I suppose that the prospect of a litigant in person is a figure to be greeted with mixed feelings. I do not suppose that on occasions there can be a more ferocious opponent than a litigant in person, who feels sincerely and deeply about his own case. Probably he has devoted all his spare time, and may even have given up his job to prepare his case. Certainly, he will have devoted a good deal more time to his case than a junior with a reasonably busy practice can afford to devote to it. He may well have spent many hours looking up cases on the law, and these may or may not be in point. However, he is nearly always treated with what seems—at any rate, to the practitioner—as excessive indulgence by the judge. at least so far as the rules of procedure are concerned. Nevertheless, up to now such a person, if he is successful, will have had what may be described as a raw deal over the matter of his costs.
At this moment, it may not be out of place to venture to welcome the application of the Bill to Scotland. Even if we have never practised there, those of us who live in Scotland sometimes feel that Scotland lags behind England in legal reform. Therefore, a Bill of this kind—if I describe it as modest that is not meant to be offensive—is welcome, even though in the other place the Lord Advocate was perhaps less than welcoming over the language used. Although the Bill is simple, its passage through another place seemed to provoke considerable passion which was out of all proportion to its innocuous character. The non-lawyers attacked the lawyers; the legal profession attacked each branch in turn; and at one stage even the court officials were attacked. That is not a trap into which I intend to fall.
There are two points which I would make, and they are these. First, the litigant in person is in a position where he can save substantial fees to solicitors and counsel. As has been observed, even a successful litigant who has the benefit of a solicitor and/or counsel will not recover all his costs. It depends on how they are taxed. Even at the end of the day he will not recover 100 per cent. of his costs. It may well be that a would-be litigant is put off venturing to press his case, because he feels that although his 1073 cause is just he may not at the end of the day be able to afford the shortfall so far as his pocket is concerned. Secondly, there are people who, for one reason or another, are considered too affluent to enjoy the benefits of the legal aid scheme, but who cannot afford to engage solicitors and counsel. This Bill will at least ensure that they are treated no worse than a legally-aided citizen.
So far as the question of quantum is concerned, I do not want to touch upon Committee points, but as the measure of costs has been mentioned by both the noble Lord, Lord Darling of Hillsborough, and the noble and learned Lord on the Woolsack, may I say that I understand that it will not be easy for the Rules Committee to devise rules; nor will it be easy to apply them to litigants in person. For instance, if a plaintiff is acting in person and is the victim of a motor car accident and then revisits the scene, which may be many miles away, to take photographs or to get witnesses' statements, besides his travelling costs he will incur many hours of work—and proper work—in preparing his case. One wonders, therefore, particularly in view of what has been said by the noble and learned Lord the Lord Chancellor, whether he is to he encouraged to prepare his case outside the hours of his employment—at weekends or on a Saturday, or even during his holiday. As I understand it, if he does so he may well be judged by an unfriendly committee not to be out of pocket. Therefore, he will not recover his costs. On the other hand, if he performs this vital part of his preparation in his employer's time, later on, as I understand it, he will be able to recover such costs at a certain scale if he is successful. One also comes to the matter of how valuable his time is, but I think that is too complicated to be taken further.
Equally, if a man takes time to prepare his case—and as a litigant in person he must do that—he may take much more time to prepare it than would a competent solicitor. The litigant in person may be honest and he may do his best, but it is a matter of competence and training. Nevertheless, it is perhaps unfair that at the end of the day the unsuccessful party should have to pay a higher sum by way of costs than he would 1074 if the litigant in person had had the benefit of a solicitor.
Finally, fears have been expressed—and the noble Lord, Lord Darling of Hillsborough, touched on this point—that the Bill will encourage to come forward to the courts a mass of litigants of a manifestly unsuccessful type, possibly even people with hopeless cases. People would come who otherwise would not. They might be people who had applied for legal aid and had been turned down by the committee, because in their opinion they did not have a valid case. I myself do not think that this will happen. People of such a nature are not put off by whether or not they get something by way of costs at the end. In any event, the new small claims procedure and the arbitration service, which the noble and learned Lord the Lord Chancellor has described this afternoon, will encourage many of these litigants not to seek their rights in what I might call the "traditional manner". What this Bill will do is to go some way to remove the anomalous position of those who exercise their inherent right of presenting their case to a court themselves.
§ 5.32 p.m.
§ Lord DENNING
My Lords, I welcome this Bill and I thank the noble Lord, Lord Darling of Hillsborough, for introducing it. It remedies a small injustice in the law. I see many litigants in person. Every Monday morning, three or four come into my court. Even this morning there was a lady who had been locked out of her workroom; she had been still locked out by the judge; she appealed to our court; she had counsel against her and she won. We let her back. But it is not only on Monday mornings. On other days we have cases, sometimes at great length, and let me tell your Lordships particularly—and it is a defect in our law—that when people are sued for libel and defamation they cannot get legal aid. They have to do it on their own. I may tell your Lordships of a Labour councillor who spoke up at a council meeting and said something derogatory of a Conservative councillor, whereupon the Conservative councillor sued the Labour councillor for damages for slander. The Labour councillor had to defend himself. He failed before the judge, came before 1075 us and he won before us—but what costs did he get?
Perhaps even worse than that there is the case which may last many days in which a minority shareholder discovers that those in charge of a company are fleecing it. Such a person can, and has, brought actions. He may issue a circular to shareholders and then they sue him for libel, or he may bring an action on behalf of the minority who are being oppressed. He can get no legal aid. We had a case that went on for days concerning a young stockbroker's clerk. He virtually spent years trying to get matters put right. What costs can he get? I am afraid it was a decision of the Court of Appeal five years ago—I was not sitting!—which said "nothing for his labour ".
Then a man employed a surveyor who had done wrongly in the building of his house and he sued in person and won. He got his out-of-pocket expenses—what he had paid out for paper and the like—but he wanted also to charge, if you please, 10 shillings an hour for preparing the case. He said that a solicitor would get it. It was agreed that if a solicitor was in person he would get it, but I am afraid that gentleman did not get it. Going back several hundred years, the practice of the courts has been that a litigant in person cannot get anything except his disbursements. I am glad to say that this Bill will remedy that. May I say, in passing, that I hope that as a result of recent recommendations in the libel cases that I have mentioned legal aid may be permitted in the future. But that needs an amendment to the Act.
There is one further point which has not yet been mentioned. We have spoken of the cases where a man in person wins his case. I should now like to take the case of the man who loses it—and that does happen. He may have quite a reasonable case; a poor man taking it on and for some reason he has not got legal aid. If he loses his case he has to pay all the costs of the other side, and he is often opposed by leading counsel, junior counsel, solicitors and so on. He has to face all the costs and the courts have no discretion in the matter.
Only last week, we had a man who had been standing on a picket line. He 1076 lost his case and he was ordered to pay all the costs of the other side, including leading counsel and the like. If he had been to the court and asked for legal aid we should have had a discretion to deal with it. When a person is legally aided by Statute, we can consider the means of the party, we can consider his conduct in the case and we can help him. We can, so to speak, help the shorn Iamb so as to mitigate the costs which he has to pay. But if a litigant in person loses his case, we have virtually no discretion except in extreme cases. Going back in the authorities, the rule is that he has to pay all the costs of the other side, in contrast to a legally aided person, where we have a discretion. It does not come into this Bill, but I hope it may soon be a matter for consideration whether we shall have discretion.
May I say what a great improvement this Bill will be; it will enable us to do some justice to the litigants in person. But, my Lords, do not allow too much for the leisure time. The amount of leisure time which some of them spend on it is enormous. Let them have a reasonable amount, but not over-much. However, I hope that the rules which the noble and learned Lord the Lord Chancellor prepares will deal with any questions of that kind.
§ 5.39 p.m.
§ Lord LLOYD of HAMPSTEAD
My Lords, I, too, should like to welcome this Bill and to congratulate my noble friend Lord Darling on his introduction of the Bill; and also, if I may, to congratulate the Consumers' Association who, as I understand it, inspired the production of the Bill. The Bill is a small but not insignificant contribution to law reform because, after all, it affects a large and growing number of people, as the noble and learned Lord the Lord Chancellor has pointed out.
It is right to remind those who sometimes attack the legal profession—and there are people who do, as we all know—that in our legal system it has always been an inherent right for the citizen to conduct his own case. This is a right which the legal profession has always been sedulous in supporting, so the notion that lawyers are solely concerned to try to make business for themselves is by no means borne out. Moreover, as has already been pointed out, our courts 1077 lean over backwards to be fair to a litigant in person. The noble Earl, Lord Mansfield, pointed out that this is sometimes rather irritating to a professional opponent, but in the interests of fairness our courts lean over backwards in this way. If I may say so in his presence, we are very happy to have with us this afternoon the noble and learned Lord, Lord Denning, who has unrivalled experience and quite extraordinary patience in dealing with litigants in person. Exercised so skilfully as to deter them from unnecessarily taking up too much of the most valuable time of the court, this is an object lesson to everyone as to how these problems should be dealt with.
My main object in intervening briefly in this debate is to draw attention to the fact that, though this is a significant point affecting injustice with regard to litigants in person, it is also part of a wider problem. After all, the litigant in person has an impact over the whole range of the legal system, and affects the course of the whole administration of justice. It is important that we should not lose sight of this point. I wish to remind your Lordships that as long ago as 1971 that eminent body Justice produced a report on this subject. The noble and learned Lord, Lord Denning, will be familiar with it because I believe Justice consulted him, as well as other eminent members of the Judiciary. The Committee of Justice produced a most useful report making a number of valuable recommendations, one of them being, incidentally, with regard to the unfortunate omission as mentioned by the noble and learned Lord, that at present no legal aid is available in defamation cases. One is happy to have seen in the recent Faulks Report on Defamation the recommendation that legal aid should be extended to these cases. One hopes that that recommendation will be soon implemented.
On the wider issue, this committee made a number of valuable recommendations, by no means all of which require legislation. Several can be dealt with by changes in the rules or practice directions. They also made the valuable point that a further inquiry should be instituted with regard to the county court because, of course, their present inquiry was directed only to the High Court. I entirely appreciate that with regard to small claims 1078 up to £75, we now have a new arbitration procedure. But as the noble and learned Lord the Lord Chancellor pointed out, there are many cases arising in county courts affecting litigants in person, which involve larger sums. Here, the whole problem of the litigant in person arises.
One would hope that the initiative taken by my noble friend Lord Darling of Hillsborough in introducing this Bill into this House will possibly lead to further consideration of these wider problems, so that the whole issue may be examined in context so far as it affects the administration of justice. One would also hope that we may, at some time, have a more comprehensive approach so that changes may be made which will not only render justice to the litigant in person and those opposed to him—because, after all, one must consider both sides—but will also facilitate many aspects of the administration of justice which, to some extent, are impeded and clogged by certain complications arising when litigants in person are involved.
My Lords, I do not wish to take up any more of your Lordships' time on these matters. In conclusion, may I once again warmly commend to this House this particular piece of law reform.
§ 5.45 p.m.
§ Baroness ELLIOT of HARWOOD
My Lords, I think it is very brave of me to intervene in this debate, since everyone who has spoken so far has been a lawyer of immense distinction. I have no qualifications of any kind in legal matters, but I want to say a word or two in support of my noble friend Lord Darling of Hillsborough. When I was chairman of the Consumer Council, he was at the Board of Trade. We met many times, and I received a great deal of help from him. He was always very sympathetic to the matters we brought forward in the days when we were starting the movement which has now come to have such considerable effect in the sphere of consumer protection. When I saw that he was going to move this Bill, I thought I should put in a word of support to what is being suggested. I have also been written to by the indefatigable Mr. Tench of the Consumers' Association.
This Bill will be a great asset to many consumers. It is a very short Bill, but it is apposite on this subject. In many 1079 capacities today we are being invited to "do it yourself". This is a "do it yourself" legal Bill, as my noble friend Lord Darling said. It will be of great help. I have had no personal experience as litigant in person, never having been involved in any litigation; but in a long life one has come to know of cases of different kinds, particularly in connection with matters such as my noble friend Lord Darling mentioned—things like motoring, engineering, house building or house decorating, or matters which affect the ordinary person. When such matters go before the court they can now be dealt with by a person who is prepared to do it himself. This will be of enormous help.
The case brought to my notice in the memorandum sent to me by the Consumers' Association is one which is well known to those who studied the matter; namely, that of the television engineer, Mr. Buckland, who finally won his case against the surveyor, was awarded no costs and could not charge any costs for the work he had done. This Bill will remedy decisions of this kind. I believe the Act under which present methods of litigation are operating dates back to 1884. If many things had not changed since 1884, we should be in a very strange position in the country today, because 1884 is a long time ago.
My Lords, this is a useful Bill. I am sure it will he welcomed by those who find themselves in the position of having to bring an action. As the noble and learned Lord, Lord Denning, said, on many occasions these cases are brought before him, and no doubt before others as well in the courts. This Bill will give those people an opportunity of defending themselves, and of not being out-of-pocket as a result. I hope your Lordships' will give the Bill an unopposed Second Reading, and that in all its stages will proceed speedily through the House, as it has been recommended by legal people on both sides of the House. As an ordinary consumer I am very glad to add my support to the Bill.
§ 5.50 p.m.
My Lords, I hope the House will forgive me for intervening. I was looking around to sec whether any other member of the legal profession to which I belong would add a word or two in commendation of this Bill. In 1080 view of the fact that no one has done so up to now, I hope your Lordships will allow me to add my congratulations to the noble Lord, Lord Darling of Hillsborough, who has done a considerable amount of very interesting work in another place. I am not surprised that he has taken up a matter of this kind. The noble Lord, Lord Lloyd of Hampstead, said that people sometimes misunderstand the attitude of the profession in these matters. I would say, as a solicitor, that we are often very pleased indeed to give help, privately and in certain organisations, to people who wish to take their own cases. They are a little difficult at times. Some of the people who want to take their own cases are a bit stubborn on occasions; they have the idea that they can very easily understand, the law. Litigants who carry on their own cases sometimes ultimately realise that it is not as easy as they think and that the problems they have to face are fairly difficult ones. But if a litigant does want to carry on his own case, we in the solicitors' profession certainly think he should be allowed to do so and should be given every possible assistance in so far as the courts are concerned.
I should like to add my voice, and the thanks of the profession. to the noble and learned Lord, Lord Denning, for the manner in which he has dealt with cases of this sort. It must be very trying to anyone who is a judge when a person who cannot possibly be conversant in most cases anyway, with the rules of the court, and so on, comes along to conduct a case. I would add my thanks and congratulations to the noble and learned Lord, Lord Denning, for the manner in which he has helped. I want your Lordships to realise that so far as the solicitors' profession is concerned, and the same has been expressed on behalf of the other branch of the legal profession, we welcome a Bill of this nature. We certainly shall be glad to see it in operation and doing as much as can be done for the litigant.
§ 5.52 p.m.
§ Lord HARMAR-NICHOLLS
My Lords, no one could have listened to this fascinating short debate without reacting to it, and I react to it. The overwhelming view I have formed—and I did not read the Proceedings in another place or 1081 anything leading up to it—is that if had a case that I wanted to take up in the House of Lords and I wanted it effectively, courteously and efficiently done, I should ask the noble Lord, Lord Darling, to undertake it, because he did just that. But I was not absolutely convinced that it was all "whiter than white ". That is why I think it right to react. It would he presumptuous of anyone who has not detailed experience and knowledge of his own to go against the overwhelming unanimity of people who should know. The testimony we have had in your Lordships' House this afternoon has shown that people who have intimate knowledge of the subject think that the general principle is good, and there is no question of my wanting to contest the strength of the principle behind the Bill so admirably proposed by the noble Lord, Lord Darling.
It may well be that my reactions are reactions which ought to be taken into account by the Rules Committee, which I understand will be setting the standard of anything that will flow from the general direction which this Bill gives. The first thing we should be absolutely certain about is whether we wish to encourage people to be their own litigants. I accept at once that those who intend to look after their own cases ought not to be discouraged. It is right that those who think that they can deal with their own cases with intimate knowledge, because they can give more time to it than the lawyers could or would, should not be discouraged. That should go without saying.
But we ought to give some thought to whether we should encourage people who under the old rules would not have taken their own cases to do so. I think that on balance one ought not to set out to encourage litigants to take up their own cases. I hope that when the Rules Committee look at what will flow from this Bill when it becomes an Act, they will not encourage litigants, against what would be their normal reaction, to undertake their own cases. There are many reasons for that. The first is that it is often not in the litigant's best interest that he should. Nowadays, with courts on television and all sorts of things brought into people's homes, I think that 1082 as a nation we are more articulate than we have ever been. There are now more people prepared to stand on their feet and argue a case than ever was the case in the past. That has been a change in the general reaction of our nation. Not very many years ago we were not an articulate nation in that sense. Committees, and courts in particular, frightened people; today they are not so frightened. I do not think that that sort of reaction ought to be encouraged to a point where it would not be in the litigant's best interest, particularly in intricate cases.
I was interested to hear the noble Lord, Lord Darling, say that many cases would come along because of the times and conditions in which we live, the electrical things we buy, the financial agreements we enter into and all that sort of thing. I should have thought that that was all the more reason not to encourage people to think that it easy to remedy what they believe are difficulties they are having to overcome. They should be encouraged to consult a solicitor, so that in the early stages advice can be given as to whether or not there is a case at all. I hope the Rules Committee will not make matters so attractive, even marginally, that people will not take that elementary precaution.
As regards the courts themselves, if one makes it too easy to undertake a case, is the administration of the courts going to stand up to it? My experience is only as a magistrate, the lowest rung of the ladder. When people look after their own case it takes up a very great deal of time. I noted the great compliment paid to the noble and learned Lord, Lord Denning, because apparently he is able, with his vast experience and his personality, to get the people who appear for themselves to cut down the time-wasting, but there are not many Lord Dennings in England sitting in the courts. The experience of those who do is that when the litigant is looking after his own case, it very often results in a very great deal of extra time. If you try to cut them down to what you think is reasonable and proper, they feel that they are not getting justice, so you are getting the worst of every possible world. Therefore, I hope that when the Rules Committee are looking at this matter they will do so from the point of 1083 view that the general principle is sound, that those who would in normal circumstances take up their own case should not be discouraged, but that they should not he encouraged.
One point that I would emphasise was mentioned in passing by the noble Lord, Lord Denning; that is, the question of leisure time. That lends itself to abuse unless one is very careful. One noble Lord asked whether, if people did this, they should be pushed to do it at the week-end or in the evening, or allowed to stay away from work. The one rule I hope the Rules Committee will try to agree upon is that if this is work which could be done in leisure time it should be judged so to have been done, so that people are not encouraged to leave their work to take a photograph of something on the road, or something of that sort, that could be done in leisure time. I should think that this would be the trickiest part of the whole thing. I consider that it would be right, in the interests both of justice to the litigant and the saving of the court's time for the leisure time allowance to be very stringently controlled. Those are my reactions to a fascinating debate.
The general case, when one first heard it, made one want to put both hands up with overwhelming enthusiasm, but as the debate went on and I saw the various aspects that could arise, I was not so certain. I think that on balance the principle is made. The unanimity of the people who should know is sufficient in itself for us to say that this Bill should get a Second Reading. However, I hope that when the Rules Committee take the steps that will flow from this, they will take into account that it is not all so rosy as the opening speeches in terms of principle may well have led us to believe.
§ 6.0 p.m.
§ Lord DARLING of HILLSBOROUGH
My Lords, the noble Lord and I have crossed swords before and I suppose that we shall engage in controversy in future. I think I need to be rather more polite in this House than I have on occasion been in the other place in replying to the noble Lord, and will just say that the cautionary note that he has sounded is one that we must obviously consider. But I think it will be quite 1084 impossible for him to put the clock back on the encouragement that the authorities are giving to the "do it yourself" litigants.
Even with the cautionary note, the Bill has had a unanimously favourable reception. In view of the fact that there are other Bills to be considered, I think it would be wrong of me to try to reply to the points that have been raised. In any case, as other noble Lords have pointed out, if we approve the Bill and later pass it and it becomes a Statute, the real work has then to be done by the Rules Committees, and we have an assurance from my noble and learned friend the Lord Chancellor that the Rules Committees will take into consideration the views that have been expressed here. Therefore, instead of making, I think, seven votes of thanks, may I just say that I am very grateful indeed, and also thank those noble Lords who have, given their support to the Bill.
§ On Question, Bill read 2a, and committed to a Committee of the whole House.