Civil Legal Aid in UK Law

The power to add, vary or omit services under s.9 as supplemented by s.41 is to serve and promote the object of the statute. The power cannot be construed in a way which widens the purposes of the Act or departs from or varies its primary objective (see, e.g., Utah Construction and Engineering PTY Limited v Pataky [1966] AC 629 at 640 and Bennion on Statutory Interpretation 5 th Edition section 59, pages 262–263).

9) The judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally-aided litigant.

In my judgment, Mr Eadie QC was right to say that the test for "risk" required by Section 10(3)(b) must be considered by reference to the aim and purpose of LASPO itself. LASPO aims to make civil legal aid available in the particular cases identified in Part 1 of Schedule 1, and not otherwise, unless the provision of legal aid is necessary or appropriate within the definitions at Section 10(3).

But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.

For nearly half a century, legal aid provided out of public funds was the main source of funding for those of modest means who sought to make or (less frequently) defend claims in the civil courts and who needed professional help to do so. By this means access to the courts was made available to many who would otherwise, for want of means, have been denied it.

A second aim was to improve access to the courts for members of the public with meritorious claims. It was appreciated that the risk of incurring substantial liabilities in costs is a powerful disincentive to all but the very rich from becoming involved in litigation, and it was therefore hoped that the new arrangements would enable claimants to protect themselves against liability for paying costs either to those acting for them or (if they chose) to those on the other side.

As to these fears, it is vital to keep in mind that the decision on whether or not to grant legal aid has been entrusted by Parliament to the Legal Aid Board, not the court. Parliament has prescribed a framework of limitations and conditions but the Legal Aid Board retains a discretion.