Legal Aid Administration in UK Law

Subsection(2) reads as follows: "Where a person receives legal aid in connection with any proceedings" - I am afraid I must read all the paragraphs - (a) "the expenses incurred in connection with the proceedings, so far as they would ordinarily be paid is the first instance by or on behalf of the solicitor acting for him, shall be so paid except in the case of those paid direct from the legal aid fund as provided by this Part of this Act; (b)his solicitor and counsel shall not take any payment in respectof the legal aid except such payment as is directed by this Part of this Act to be made out of the legal aid fund; (c) he may be required to make a contribution to the legal aid fund in respect of the sums payable thereout on his account;(d) any sums recovered by virtue of an order or agreement for costs made in his favour with respect to the proceedings shall be paid to the legal aid fund; (e)" - which is the paragraph relied on by the husband here - "his liability by virtue of an order for costs made against him with respect to the proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute."

No legal aid was granted to the Appellant in respect of the proceedings which consisted of the wife's prayer for divorce. Then does the wording of Section 2(2)of the 1949 Act require, nevertheless, that the Appellant shall be treated as legally aided in respect of both proceedings?This result will not follow unless the word "proceedings" in Section 2 (2) must refer, and refer only, to the totality of the proceedings.

My Lords, in the Court of Appeal, it was conceded by counsel for Mr. Yorke, and Brandon L.J. in his judgment accepted the concession as correct, that if the sum ordered to be paid as a condition of granting leave to defend is one which the defendant would never be able to pay, then that would be a wrongful exercise of discretion, because it would be tantamount to giving judgment for the plaintiff notwithstanding the court's opinion that there was an issue or question in dispute which ought to be tried.

We agree with Mr. Justice Forbes that it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities and that, despite all proper endeavours by an applicant, and those advising her, to obtain a legal aid certificate with the utmost urgency, there has been some difficulty about obtaining it through no fault at all of the applicant.

The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially, prejudice the rights of, any person or would be detrimental to good administration.

Another question which arose was as to whether the husband's conduct in relation to the financial matters after the separation was relevant. Such conduct must be taken into account, because a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation, and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.

The present Order 62 Rule 11 refers to costs incurred unreasonably or improperly or wasted by the failure to conduct proceedings with reasonable competence and expedition. What is unreasonable or reasonable, as the case may be, must depend upon the circumstances of each case, and I have no doubt that courts will bear in mind the difficulties inherent in conducting litigation and on occasions in keeping to the relevant time limits.