The Progress And Future Of Legal Aid In Civil Litigation

Publication Date01 Jul 1965
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01087.x
AuthorGerald Dworkin
THE
PROGRESS
AND
FUTURE OF
LEGAL AID IN CIVIL LITIGATION
"To
none will we sell, deny or delay
right
or justice "-Mama Carta.
INTRODUCTION
LEGAL aid in civil litigation has been in operation for fifteen years
and is now obtained
in
more than
50
per cent. of the more serious
cases in all the courts in the country. In the few years in which
legal aid has been available in the House of Lords, several impor-
tant decisions owe their existence to the legal aid scheme.' The
Legal Aid Act,
1964,
which attempts to alleviate the harshest by-
product of the system, provides an opportunity for surveying
the recent progress of legal aid.
It
is clear that the legal aid scheme
is
working well as originally devised and any changes in the future
will be fringe modifications only. The purpose of this article is to
review the developments
of
the past few years,
to
examine the
Legal Aid Act,
1964,
and discuss the broad lines of future
development.
THE GROWTH
OF
THE
SCHEME
The Legal Aid and Advice Act,
1949,
which was the outcome of the
recommendations of the Rushcliffe Committee in
194G,
was brought
into operation
on
October
2,
1950,
and provided initially that legal
aid would be available for proceedings in the Supreme Court. The
scheme has always been run by the legal profession itself. The
administration was entrusted to the Law Society in consultation with
the General Council of the
Bar,
and under the general supervision
of
the
Lord
Chancellor. The legal profession also contributed to
the scheme by accepting
a
reduction in costs of
15
per cent.' By
1956
the scheme was working sufficiently smoothly to be extended to
county courts and in
1959
the provisions for oral legal advice were
introd~ced.~ Finally, in
1960
with the introduction of legal aid in
matters not involving litigation' and the extension of legal aid to
the House
of
Lords and to civil cases in magistrates' courts and
courts
of
quarter sessions, the operation
of
the scheme as envisaged
1
e.g.,
Collins
v.
Gollins
[1964]
A.C.
644
and
Willkms
v.
Wilhm
[1964]
A.C.
698
(divorce law);
Rookes
v.
Bamrd
[19M]
A.C.
1129
and
Cartledge
V.
Jopling
119631
A.C.
758
(indnstrial law);
West
v.
Shephard
[1964]
A.C.
326
(law
of
damages).
2
This
figure was changed
to
10
per cent. in
1960;
Legal Aid (General) (Amend-
ment
No.
4)
Regulations,
1960.
3
Legal Aid and Advioe Act,
1S49.
8.
7
(hereinafter referred
to
as
"
the
1949
Act
;I).
In
1863-64
over
60,OOO
people
obtained legal advice under this
provision.
4
The
1949
Act.
8.
6.
432
JULY
1966
PROGRESS
AND
FUTURE
OF
LEGAL
AID
43%
by the
1949
Act was completed (apart from proceedings before the
Judicial Committee of the Privy Council and in coroners' courts).
However, by this time ten years of inflation had made itself felt
and
a large section of the community who were originally intended
to benefit from the scheme found themselves outside its financial
limits. Consequently, the Legal Aid Act, 1960, revised the
financial provisions to enable at least those who had been aimed at by
the 1949 Act to benefit; in addition contributions required
of
some
assisted persons were reduced, thus increasing the benefits.
Although legal aid is now available only to
a
person
whose di5
posable income does not exceed 2700 per yearY5 it can be available
to a person with a much higher gross income; thus, for example, a
person (married and with three children) with a gross annual income
of up to 21,600 in some circumstances may avail himself of the
scheme. Further, although a
person
with disposable capital
exceeding
f500
may
be
refused legal aid, if the costs are unlikely
to
reach this figure,
it
may be granted
if
he
is
within the income
limit, and it appears that his costs in connection with the proceedings
would
be
more than the maximum contribution determined upon
capital and income.6
The use made of the scheme in a country not renowned for
its
litigiousness has been remarkable. From its inception until March
31, 1964, 838,815 applications for legal aid were received, 611,712
were granted and 546,694 certificates were issued. Thus about
72 per cent. of the applications were granted; the remainder were
refused either because the applicants were above the financial limits
for assistance,
or
their applications had insufficient legal merit in
the eyes of the Legal Aid Committees. The most remarkable
feature, however, has been the increase in applications in the last
few years. In the year 1960-61 the increase in applications over
1959-60 was 42.5 per cent., in 1961-62 the increase was 82.2 per
cent. over the previous year and 159-6 per cent. over 1959-60.
Since then the increase has been steadier: in 1962165 the increase
was 17.4
per
cent. over the previous
year
and in
1963-64
the
increase was only 6-3 per cent. over the previous year.
Although the rising demand for the benefits
of
the scheme may
partially reflect its success,
it
also
creates financial problems.
It
has been necessary for the Government Exchequer to increase the
grant by more than a million pounds each year since 1960: gl.4~1.
(1959-60), E1.8m. (1960-61), E2.6m. (1961-62) E3.6m.' (1962-63)
E4-7m.
(1963-64), and in 1964-65 it may exceed E5-8m.
The increasing cost of the scheme is not necessarily explained
by any of Professor Parkinson's laws. The main factors appear to
have been, first, the new financial provisions in 1960 which made
5
Legal Aid Act, 1960,
8.
1 (1).
6
See (1962) 59
L.S.Gm.
413.
7
The
initial grant
of
€2.5m.
for
1962-63
proved
to
be inadequate end in conse-
quence a supplemental grant
of
€l.lm.
was made.

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