The Gazette 1984

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 !279