The Solicitors' Journal – February 26, 1949

As Mr. R.E. Manningham-Buller pointed out in a recent letter, this comment may well influence the final shape of the Bill and, when combined with the outstanding contributions made by solicitor Members of Parliament during the second reading debate, it represents a fair cross-section of the opinions of those who will eventually have to make the Bill work.

In discussions at all levels, three points have overshadowed all others. The first is the restriction of assistance at legal aid centres to oral advice given by the peripatetic or itinerant solicitor; next comes the liability of the unsuccessful assisted litigant in regard to costs; and thirdly, the remuneration of the assisted litigant's solicitor.

Critics of the Bill are satisfied that it contains adequate provision for the applicant who will only need oral advice. It caters equally well for the applicant whose problems cannot be solved without litigation. Argument develops, however, over the case which requires expert assistance in correspondence and negotiations but can probably be settled ultimately without going into court. Under present proposals this intermediate class of case cannot be dealt with at a legal advice centre, because those centres are limited to the giving of oral advice. It follows that any case involving more than oral advice must come under the legal aid portion of the scheme and the applicant will have to invoke the somewhat cumbersome procedure of submitting his case to the local committee and his means to the National Assistance Board. The Government's reasons for excluding this intermediate class of case from legal advice centres is that such centres will be insufficiently equipped and staffed to deal with correspondence and negotiations. This decision has been supported by a number of practising solicitors on a different ground, namely, that a negotiator who has no writ in his pocket will be at a serious disadvantage and that claims will not be settled at a fair figure through the medium of a centre which restricts its activities to legal advice.

We feel that there is an overwhelming argument for increasing the jurisdiction of legal advice centres to allow the solicitors concerned in them to undertake correspondence in the simple type of dispute where one letter may prove to be sufficient. It may be some time before such centres can deal with disputes involving substantial negotiations, but it may be possible to devise a half-way house between the legal aid centre and the local committee for this purpose. It is clearly right that the system of filtering claims by the local committee and National Assistance Board should be applied before a litigant is allowed to incur the costs of actual litigation, but the much lower costs of negotiation might be sanctioned without these safeguards. A suggestion on these lines for employing local solicitors in negotiation and letter writing appeared in our correspondence columns on 15th January.

Argument for and against the rule that an unsuccessful assisted litigant should be liable for his opponent's costs has been well balanced. Those who favour the rule are anxious to see some adequate check on unnecessary proceedings or, like Mr. Claud Mullins, are concerned lest undue encouragement should be given to litigation as opposed to conciliation. If the contribution which the assisted litigant is required to undertake under the scheme really represents the full amount which he can afford to pay, this should in itself be a deterrent to a light-hearted approach to proceedings but, in any event, as the amount payable to the successful opponent is in the discretion of the judge, it seems unlikely that the rule will give rise to hardship in practice.

There has been an understandable reticence on the part of the profession to give prominence to objections concerning their own remuneration under the Bill. There is an almost universal desire to see a workable scheme take shape and to accept whatever reasonable sacrifices it may entail. It has, however, been pointed out that the party and party costs payable by the assisted litigant's opponent will sometimes exceed the solicitor and client costs payable under the scheme to the litigant's solicitor when the reduction of 15 per cent. has been made in those costs. Both with a view to avoiding double taxation and in fairness to the solicitor it seems reasonable that he should have the option of taking the party and party costs in such cases.

There has been very little published comment on the clauses which reduce the remuneration of solicitors and counsel in the High Court to 85 per cent. of their normal fees. The profession as a whole is not guilty of undue self-interest in this matter and hesitates to give a false impression to the public by airing its views. We feel, however, that there would be general satisfaction amongst solicitors and counsel alike if publicity were given to the reasons for this reduction, because, in the absence of explanation, it may be taken to be an admission that the normal scales are unfairly high. This clearly is not the real reason and perhaps the Government will say so.