Legal Aid
Introduction:
Since the Second world war, the greatest revolution in the law has been the system of legal aid. It means that in many cases the lawyers’ fees and expenses are paid for by the state, and not by the party concerned. It is a subject of such importance that I venture to look at the law about costs- As it is, as it was, And as it should be.
The costs as they used to be:
Before second world war, whenever there was litigation in the courts, each party had to pay his own lawyer his costs, that is his fees and expenses- including the sum his lawyer had to pay out to counsel or experts or witnesses, which were called his disbursements and also the reward which his fees and profit costs.
The general rule was this: if the plaintiff won the case, the court would order the defendant to pay the plaintiff’s costs, so the defendant had to pay the plaintiff’s costs as well as his own. If the plaintiff lost the case, the court would order him to pay the defendants costs as well as his own. This was for either party, so onerous a prospect that litigants would hesitate long before going to law, to make or resist a claim. No Wise man would go to law unless he was pretty sure of winning or the circumstances which made it inevitable. But the old system gave rise to such abuse that reform became imperative.
The coming of legal aid:
1. Only for the poor:
The first legal aid act was passed on 30 July 1949. No longer is any person bound to bring his own suit upon his own bottom and upon his own expense. Those who are poor of small means can bring their cases at the expense of the state, they can have them conducted by the lawyers of their own choice, without making any contribution out of their own pocket. They make a nil contribution as it is called. If they win, they pocket the winnings. If they lose, they don’t have to pay any of the costs of the other side.
So, also for those who are a little better off- except for this difference. They have to make a modest contribution such as they can easily afford without any hardship towards the costs of their own solicitor. In any case where the swift action is needed an emergency certificate can be granted without any inquiry as to means. All that is required is a brief outline by the solicitor. But for those who are reasonably well off, the middle class there is no legal aid at all. They still have to pay their own costs, and also those of other side if they lose.
The main principle of the scheme is there must be reasonable grounds. A person should only be granted legal aid, if he has reasonable grounds for
taking or defending the proceedings: and that each step taken on his behalf by his solicitor should only be taken if it is a reasonable step for him to take.
2. Value of the scheme:
The scheme has proved of immense worth to the community. Many persons have recovered debts or damages by means of legal aid which they would not otherwise have done. Many points of law of great importance have been taken to court of appeal and the house of lords and finally resolved-which would otherwise have been left unresolved. But it is capable of being abused,..
3. Charge on property recovered or preserved:
A legal aid fund has a charge on any money or property recovered or preserved. This is only fair, if one had not been legally aided, his solicitor would have had such a charge, so also should the legally aid fund have a charge. An instance where a person is injured in an accident and recovers, $ 30000 damages. He was legally aided so his solicitor is paid by the legal aid fund- let us say $4000. The legal aid fund can require this $4000 to be retained out of the $ 30000. Many matrimonial cases arose and the legal aid turned out to be a major setback for the delivery of justice in a fair and judicial manner.
Drawbacks of the legal aid:
1. Running up costs:
One of the problems about legal aid is that solicitors have an interest in running up costs for their own benefit contrary to the interest of the taxpayer and of the other side. And there is no effective means of stopping them, except by the area committee imposing limitations on what they do. Solicitors in the utmost good faith did work for which their costs were afterwards disallowed.
2. Settling cases:
Another problem in legal aid cases is the immense superiority which is given to the legally aided person when it comes to settling a case. He has this trump card in his hand. He can go on with the case at the expense of the state, whereas the other side has to pay out of his own pocket and would get no costs from the legally aided person. Many a times the defendants or their insurers have given way. It is far cheaper for them to pay the plaintiff a goodly sum than to pay all their own costs. So whilst the legal aid authorities often claim proudly their successes, it must be remembered that sometimes it is a success tainted with menaces.
3. Pity the unassisted person:
It is most unjust to an innocent person that he should have to fight a legally aided person and win and yet have to pay his own costs. The villain of the piece, in the eyes of the innocent person is the legally aid fund. They have financed the claim or the defence. Without legal aid the plaintiff might never have sued at all or the defendant might never have put on a defence. The
legal aid fund have beyond doubt maintained the claim or defence as the case may be. At common law they would be guilty, not only of a wrong, but of a crime. Yet under the legal AidAct 1949 they get away scot free.
Observations:
Legal aid has conferred great benefits on a section of the community those who only have modest means and on the members of the legal profession, who are paid by the state for their services. But it has been accompanied by a vast increase in litigation, by congestion in the courts, by long delays before cases are heard, by the need for more and more courts, and by an increase in the number of lawyers. It is far too late now to attempt to abolish it. All that can be attempted is to remedy the abuses which are incidental to it.
- Legal aid should be granted with circumspection, not without careful consideration of the consequences. It should not be used as an instrument of oppression against other parties who are not legally aided. It should not be used so as to exert undue pressure for a settlement. It should not be used so as to run up the costs in extravagant fees or expenses. It should not be used so as to delay or deny right or injustice.
- If a person who gets legal aid loses his case, or any issue in a case against a person who is unassisted, the legal aid fund should as a rule pay the costs of the unassisted person. Irrespective of who started the litigation and irrespective of the means of the unassisted person.
- Legal aid should be extended so as to be available to persons in the middle range of incomes.
Author: Chandanasriya.k, a Student of Damodaram Sanjeevaya National Law University