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GAZETTE
SEPTEMBER1984
£50,000 when they litigated their rights to £3 million for
60 days. Would it not have been better to have charged
them the full economic cost, or indeed a commercial rate,
which would have been much higher, and used the money
to supplement the legal aid fund? The solution is to charge
everyone the full economic or, better still, a commercial
rate for the services of the court, including the judges, and
to apply an improved and more just legal aid system to
these true court cases as well as to the parties' costs.
Legal Aid
Recently, in response to a request for suggestions for
improvement, I threatened to reply on these lines. Let us
divide all litigants into two groups. The first group would
consist of the 'Baddies'. These are those who put forward
unjustified claims or resist valid claims. They should be,
and usually are, the losers in the litigation. The other
group would consist of the 'Goodies'. They put forward
valid claims. They should be, and usually are, the
successful parties in the litigation. Let us, I would have
suggested, make out-and-out grants from public funds to
the Baddies and let us make loans to the Goodies, such
loans to be repaid out of anything which they may
recover. The Baddies would be sitting pretty. The
Goodies would end up in much the same position as if
they had borrowed the money to litigate from their
maiden aunts. I refrained from doing so, lest I be removed
from office for mental illness. But, as you all know, if I
had done so and if my suggestion had been accepted, there
would have been scarcely any need to change the legal aid
scheme, because that is more or less how it operates
today.
Surely we have to evolve a system whereby those who
really do have legal rights to enforce or protect receive
better treatment. And whereby those who do not — those
who are unsuccessful in litigation — have rather more at
stake. Not only would this be more just, but it would
promote rational settlements which is in the public
interest. Why should we not make legal aid partly a
matter of grant and partly a matter of loan for
both
parties? It may be objected that the contribution which is
at present required of the assisted person is, by definition,
all that he can afford. But this is just not true. The
contribution takes account of immediately available
capital and immediately available income. But future
income is largely ignored. The unassisted litigant, in an
appropriate case, would, without doubt, consider raising
a loan and repaying it out of future income over a long
period. He does so without hesitation when he buys a
consumer durable, or a car. Why should the assisted
person be in any different position in relation to litigation.
There are other nonsenses about legal aid. In real life,
individuals will, quite rightly commit more of their
resources to a venture which they expect to confer large
benefits than to one where, at best, the rewards will be
small. Not so with legal aid. The assisted person makes
the same contribution, however much or little is at stake.
But that is almost a detail.
Legal Expenses Insurance
During the last few years, some people have been
insuring against the cost of litigation. It is something
which did not exist, when legal aid came into existence.
This should be encouraged. Legal aid must be modified to
take account of this new ability of a litigant to assist
himself. Those who insure against legal costs should
thereby acquire a preferential right to legal aid. It might,
for example, take the form of a proportional reduction in
the resources taken into account in determining his
entitlement to legal assistance. Where a person was both
insured and legally aided, legal aid would take over if and
when the assited person's rights under the policy had been
exhausted. Such a modification would help the State
discharge its duty of making justice available to any
citizen at a price which he can reasonably afford.
The
Courts in Civil Disputes
I have looked at two sacred cows — virtually free access
to the courts and legal aid. Now let me look at a third.
This is that the extent to which the courts become and
remain involved in civil disputes and, in particular, the
speed with which disputes are determined, is entirely a
matter for the parties, subject only to the ability of the
courts to play their part.
This has all the hallmarks of a truly sacred cow. It is
rooted in history and is seldom, if ever, questioned. It
made complete sense some centuries ago. In those days I
fancy that little attention was paid to such an abstraction
as the right to civil justice. The interest of the State was
simply to ensure that citizens did not resolve their
disputes by force, thereby weakening the military strength
of the nation. The courts were purely a safety valve. If and
to the extent that citizens could tolerate the dispute
remaining unresolved, the courts had no interest.
I hope and believe that things have changed. We do
now accept that, as a matter of principle, legal rights
should be protected and enforced and that this should be
done speedily and efficiently. There are two conse-
quences. The first is that the courts should not lightly be
involved in disputes. Protecting real rights is one thing.
Being brought in casually as a bargaining counter is quite
another. Second, where the courts are involved, they
should be able to insist upon the parties co-operating to
produce a speedy solution.
That leaves the extent to which the court should be able
to require litigants to make progress with litigation, once
they have invoked the court's assistance. With one or two
exceptions, this has never seriously been considered in the
past for two reasons. The first is that the courts have no
machinery capable of monitoring the progress of the great
mass of cases. The advent of the computer has removed
this objection. The second is that the parties are thought
to be the best judges of their own interests and that if they
display no passionate interest in resolving a dispute, there
is no public interest in doing so. This is superficially
attractive, but will not, I think, bear examination. In real
life it is rare that neither party wants the dispute settled
quickly. In the vast majority of cases one party or both
want a speedy solution and blame the courts for not
providing it. Yet the cause of the delay is really either that
their lawyers (from both branches of the profession) have
taken on more work than they can do within a reasonable
time, or that one party or the other is not co-operating, or
both. Practical experience shows that leaving it to the
parties to persuade their lawyers to apply to the court for
orders designed to speed up the process simply does not
work. The court should take the initiative and it should be
for the parties and their legal advisers to explain why there
is any delay.
Arbitration
This brings me, I hope logically, to question yet another
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