COSTS OF SUCCESSFUL UNASSISTED PARTIES
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02302.x |
| Author | C. Glasser,R. S. Nock |
| Date | 01 May 1969 |
| Published date | 01 May 1969 |
COSTS OF SUCCESSFUL UNASSISTED
PARTIES
IN
Re
S1.
(Infants)
Pennycuick
J.
considered the meaning of the
words
Kc
just and equitable in all the circumstances
”
in section
1
(2)
of the Legal Aid Act
1964,
in the light of the decision of the
full Court of Appeal in
Nowotnik
v.
Nowotnik.2
The Act deals
in a limited way with the recovery of costs against the legal aid
fund by unassisted parties.
Before:
1964,
the legal aid fund could not have been made liable
for
costs at alLs The only remedy available to
a
successful un-
assisted litigant was to obtain an order against the assisted party
personally under section
2
(2)
(e)
of the Legal Aid and Advice
Act
1949.‘
The liability of the assisted person by virtue of such an
order is limited to
“
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.’’ This provision has, however, proved inadequate
as
a means of indemnifying the unassisted party. AIthough there is
nothing in the subsection
to
prevent an order being made for the
full amount
of
the taxed costs, payable by instalments, where
appropriate, the liability of the assisted person has generally been
limited to
a
sum equal
to
the contribution paid by him
to
the
legal aid fund in respect of his
own
costs. Thus, if the legally aided
party ha:;
a
nil contribution,
no
order will usually be made against
him.
This method for determining liability for an opponent’s costs
may appear somewhat illogical. Under the Legal Aid Scheme
it
is the asuisted person’s income and capital over a particular year
which ascertains not only eligibility for aid but also fixes the
maximum contribution payable over
a
bed period.s Through the
1
[1967]
9
All E.R.
538.
2
[1967]
P.
83; [1965]
3
W.L.R.
920; [1965]
3
All
E.R.
167,
C.A.;
[l965]
2
All
E.E.
618.
For th? position before
1949
under the Poor Persons’ Act and
in
forma
rocedure when neither side could recover costs and the reasons for
2)l%’t:
2.
Egerton,
Legal
Aid
(1946),
pp.
78-84.
4
The genesis of this subsection can be found in the recommendation
of
the
Rushcliffe Committee
on
Legal Aid and Advice
(1945)
Cmd.
6641,
para.
172.
5
The main factor in determining eligibility
is
‘the amount of disposable
income. See Legal Aid and Advice Act
1949,
8.
2 (l),
as
amended
by
LegaI
Aid Aci;
1960,
s.
1.
6
See
s.
3
(1)
of the
1949
Act. A contribution may also be required in respect
of capital. The provision relating the maximum contribution to
8
single year’s
income is the result
of
the recommendation of the Rushcliffe Committee
on
Legal Aid and Advice
(1945)
Cmd.
6641,
para.
148.
The provision requiring
the masximum contribution to he paid over twelve months
is
curiously
not
276
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