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Column 266theoretical right. It is one which is taken up in practice in a fair number of cases, although it must be said that something that strikes an opponent as conclusive evidence of a weak case will not necessarily strike the Legal Aid Board in the same way. Using further evidence provided in that way, the board may decide to discharge the legal aid certificate, should the circumstances warrant it. My hon. Friend has asked in what proportion of cases where such representations are made the board removes legal aid. I am afraid that the board does not keep a record of that. However, all such representations are taken very seriously and, unless they give the board nothing at all to go on, are pursued with the other side, who are asked to show cause why legal aid should not be removed. This process, combined with the board's checks on the continued validity of a grant of legal aid, ensures that virtually all weak cases are weeded out before the case reaches court.
In contrast, in privately funded cases, it is often not until the case comes to court that it is scrutinised and its merits are assessed. By then a large amount of costs may already have been incurred. The opponent is then faced with a further battle to secure his costs, sometimes to no avail. It is still possible, therefore, for a privately funded client to bring a bogus claim.
I must dispute my hon. Friend's comment that the board gets it wholly wrong if a legally aided plaintiff loses. Last year, more than 92 per cent. of legally aided parties won their cases. This is not to say that those cases which were lost should never have received legal aid. It is rather a reflection of the generally successful way in which the board applies the merits test. In answer to my hon. Friend's question, the figure for 10 years ago--the year 1982-83--was 86 per cent. success. So there has been a significant improvement in the past 10 years.
I think that the current proportion is about right, because the Legal Aid Board's job is not to fund only sure-fire winners but to sift applications to ensure that only reasonable cases receive funding. There should, therefore, always be a proportion of legally aided cases which are lost. Otherwise the board would be replacing the "reasonableness" test with a test of complete certainty, and many perfectly respectable cases which stood a fair chance of success would not be given that chance.
Therefore, there are occasions on which the legally aided plaintiff will lose his case against an unassisted defendant. As I have said, I do not think that that is in itself wrong. I am, of course, concerned about the position of the privately-paying defendant, who may be by no means wealthy. Therefore, in the event of this happening, and provided that it is just and equitable for the defendant to receive costs from public funds, an order can be made for the costs to be paid by the Legal Aid Board. Before this can be done, however, at the first instance only, the defendant must be able to satisfy the court that he will suffer severe financial hardship if the order is not made. That final safeguard acts as a protection for those who would be most likely to suffer, despite successfully defending a claim. I am concerned that my hon. Friend's constituents have been experiencing the problems that gave rise to this debate. However, I am grateful for this opportunity to explain to the House an aspect of the legal aid scheme that is not always easy to understand. It may be helpful if I set out the reasons for the scheme's operating as it does in this respect.
Column 267The need for the defendant to prove that he will suffer severe financial hardship--which my hon. Friend may find it consoling to know is a matter for the courts, and not for the board--has been called into question as being unfair. I am bound to say that if the provision could be considered in isolation from anything else, I might agree. But this cannot be considered simply on its own merits. As my hon. Friend will know, there are many calls on public funds, both to widen the proportion of people or types of case eligible for legal aid and, more widely, in many other aspects of our lives. These cannot all be met from the public purse. What this provision therefore seeks to do is to protect those who would suffer most. This is not a perfect solution. It is perhaps inevitable that there will be cases in which the decision seems harsh. But, in view of financial realities, I consider that the balance represented by the provision is about right.
Legal aid expenditure has risen by 130 per cent. over the past four years. The public purse is not a bottomless pit, and there are many competing claims on it. This measure was debated fully by Parliament when the Bill was passing through it, and Parliament has determined that it is right for the defendant's means to be considered. Whilst again I cannot comment on the board's handling of a particular case, it may be helpful if I set out my understanding of what happened on this aspect of the Harries case. I understand that two orders for costs were made in this matter--by the county court and the Court of Appeal respectively--and it is the first that has caused difficulty. It appears that the problem has arisen because there is some concern on the part of the board that the original order made in this matter is defective as no inquiry was made into the defendants' means before the order was made. The board has attempted to sort out the problem
Column 268informally with my hon. Friend's constituents' solicitors in order to avoid the cost of any further court proceedings. Unfortunately, it has not been possible to do this, and the board now intends to apply to have the order rectified.
The board is quite happy to satisfy the further order made in this matter, by the Court of Appeal, once the inquiry into the plaintiffs' means has been concluded. The purpose of that inquiry is to assess the amount payable by the plaintiffs, with the balance of the appeal costs being paid by the Legal Aid Board. I believe that this inquiry stands adjourned at present.
Although my hon. Friend has not explicitly said so, I sense from his remarks a wider concern about the costs of civil litigation for those without the benefit of legal aid. As he will know, since the publication of the civil justice review in 1988 we have been taking steps aimed at reducing cost, delay and complexity in civil litigation, and this programme is continuing.
Finally, I must also address the underlying concerns that my hon. Friend has expressed about the whole nature of the current legal aid scheme and the use of the courts for resolving apparently minor disputes. As my hon. Friend may know, the Lord Chancellor is currently conducting a fundamental review of expenditure on courts and legal services, including legal aid. This will be looking at whether the present system offers the best forums for resolving disputes and at factors influencing cost in a number of areas of civil litigation, with a view to achieving changes that will reduce the cost of such litigation for all those concerned in the system, including individual litigants and the taxpayer. If my hon. Friend, whose views I greatly value, wishes to write to me with any suggestions he may have about this, they will certainly be taken into account.
Question put and agreed to.
Adjourned accordingly at seven minutes to Eleven o'clock.
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