Community Legal Service (Scope) Regulations 2005.   

I understand that we are speaking to all three Motions together. I shall therefore follow them through. We are concerned with what is happening to legal aid and, in particular, the decline in civil legal aid. Resulting hardship is caused to many people who find that their access to justice is no longer available. We have therefore examined the proposals with considerable care. Broadly, we accept most of them with greater or lesser enthusiasm. In particular, I considered carefully the scope regulations and the exclusion of legal aid for deliberately caused personal injuries. It was somewhat tendentious of the Government to refer in the Explanatory Memorandum to the case of Brendon Fearon, which was an exceptional case; in fact, in many deliberate personal injury cases the victim is entirely innocent. One has only to think of a case where someone is sitting quietly in a pub when someone who has had too much to drink goes berserk, perhaps because he does not like the colour of the person’s face, and attacks them with a broken bottle or glass. That is plainly a deliberate injury, and the victim is entirely innocent. However, in this case I accept that we are concerned with compensation for loss and damage, not punishment of the offender. In such cases, I accept that there is not much distinction, that that distinction can be artificial and, indeed, it is sometimes uncertain what is negligent and what is deliberate. Therefore, I do not challenge the Government’s decision in that respect to extend the scope. The amendment with which we have most difficulty is change to the cost protection rules, particularly the removal of cost protection from a large proportion of family cases. The example that was given was of someone who unreasonably insisted on proceeding with litigation for divorce, having originally been funded, but refused to accept an offer which was regarded by the judge as perfectly acceptable. But the existing power for cost protection in Section 11 of the Access to Justice Act 1999 states:"““Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including—(a) the financial resources of all the parties to the proceedings, and (b) their conduct in connection with the dispute to which the proceedings relate””." I would have thought that if someone refused a plainly reasonable offer, that that would be an important circumstance in deciding whether costs should be awarded against that individual. So I have considerable difficulty in seeing, at least in that example, why this statutory instrument is needed. The Law Society is particularly concerned about this and objected to it during the consultation. The Law Society said that cost protection should not be removed. It stated:"““There is already a merits test in place and undeserving cases should not now be funded by the Commission in any event. To remove costs protection from a legally aided client, i.e. one with extremely limited means, would have a devastating effect on many clients, often with children. It would exacerbate the bitterness already felt towards the ex-spouse, the effect of which would spread to the children perhaps resulting in further contact difficulties. There already exist means by which the Court can order repayment costs, where possible, in extreme cases, and there is currently a duty to report unreasonable behaviour. The Commission should consider the time and effort to collect the costs against the minimal savings made and the very few individuals likely to be deterred from unreasonable behaviour””." Clause 11 removes cost protection from those people; therefore it can be necessary only if it is a proposal to enable the court to order costs exceeding the amount that it is reasonable for a person to pay having regard to all the circumstances. It seems extraordinary that the courts are to be given the power to make orders that are necessarily unreasonable. We are very concerned about the Government’s attempt to remove cost protection in such cases. Although we are not so concerned as to reject the order, which would be a very unusual circumstance, we are seriously concerned about this aspect of it. We think that the Government are wrong to seek to remove cost protection in these cases.