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Lord Monkswell: One way of reducing the cost for both landlord and tenant in disputes involving the leasehold valuation tribunal is to ensure that in front of the tribunal the parties shall not be represented and shall not call experts. They shall argue for themselves.
Lord Selsdon: I am grateful to Members of the Committee for commenting for 35 minutes on something I hoped would take a brief moment. I am reassured by one thing. I believe for the first time today that the adversarial attitude of both sides of the Chamber appears to have disappeared. I do not know why in the Leasehold Reform Act I had the opinion that those on the other side of the Chamber were permanently in favour of the tenant and those on this side appeared to be permanently in favour of some rich landlord. That attitude did not do your Lordships' House any good.
The noble Lord, Lord Strabolgi, made the point that there have been some bad things in the past. The objective of this legislation is to improve matters. I still have a hang-up that too many people in this business try to talk through lawyers. When one has an expensive lawyer with a triple-barrelled name on one side and a barrack-room lawyer on the other, one ends up with enormous costs and increased aggravation, particularly for the bulk of people who do not know what "litigation" means and do not understand it.
In this part of the world, in England, I believe property law to be rubbish. Frankly, I prefer it in Scotland. I hope there will be an element of goodwill here. If the Minister had said, "Leave it to the Secretary of State", I would have panicked; but when he says, "Leave it to a nice organisation called a tribunal", I am comforted. My noble friend Lord Coleraine, who knows so much about these matters and who is so much wiser than I am, tells me not to worry. I shall make a note of his remark and if he proves to be wrong, perhaps someone will take action against him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 244B not moved.]
Lord Lucas moved Amendment No. 245:
The noble Lord said: I spoke to Amendment No. 245 with Amendment No. 243. I beg to move.
On Question, amendment agreed to.
Lord Archer of Sandwell moved Amendment No. 245A:
The noble and learned Lord said: I too begin by declaring an interest. Much of my motivation in tabling this amendment and much of what I propose to say reflects the deep anxiety of the Council on Tribunals which I am privileged to chair.
As the noble Lord, Lord Lucas, reminded us a few moments ago, this part of the Bill addresses a problem which acquired notoriety some time ago. A property company buys the reversion to a block of flats. It increases service charges to an unreasonable degree and then, when the tenants fail to pay, it brings forfeiture proceedings. Of course, it is open to a tenant to challenge the reasonableness of the service charges in the county court under Section 19 of the Landlord and Tenant Act 1985. That is sometimes done, as a number of Members of the Committee said, in the course of forfeiture proceedings. The proposal in this clause is to detach that issue from the forfeiture proceedings and transfer the jurisdiction to local valuation tribunals. That is a sensible proposal and has a number of advantages.
The leasehold valuation tribunals have expertise in these matters which no court, exercising a general jurisdiction, could hope to emulate. Furthermore, the proceedings are likely to be less costly and will probably be more expeditious. But there are two items of bad news to which some Members of the Committee have already referred.
First, unlike proceedings in the county court, legal aid is not available for proceedings before the LVT, at least in respect of representation. That may be a source of injustice. The landlords to whom we are now referring are usually property companies and will normally engage the services of experts. They will bring in people who are professionals. Sometimes that is sensible. Sometimes there are issues which require preparation and usually presentation by professionals. They, on their side, will have that advantage.
We know from the researches of Professor Hazel Genn that those who are represented before tribunals have a much greater prospect of success than those who appear unrepresented. As the noble Lord, Lord Selsdon, said, those who have never been to a tribunal in their lives are at a disadvantage when trying to elicit their case.
I say at once in the presence of the noble Baroness, Lady Gardner, that she took me to task in a different context some time ago for what I obviously expressed
That is not the subject of the amendment, but it is part of the background against which it must be considered. I said that there were two items of bad news. The second is the one to which some Members of the Committee referred a few moments ago. It is to be found in new Section 31B which Clause 79 seeks to insert into the 1985 Act. It is the provision for the fixing and paying of the court fees by the parties to proceedings before the LVT.
I share the anxieties of the noble Lord, Lord Coleraine. When the noble Lord, Lord Lucas, quoted a few moments ago the kind of figures the Government had in mind in this context--if I understood him correctly--and claimed that that was comforting news, I must say that I missed the comforting part. It seemed to me somewhat alarming news.
As I understand it, the intention is that the parties will pay the whole of the judicial costs in relation to this service, and new Section 31B(3) makes it clear that overall the fees are to meet the full costs of providing that service. That is bad news indeed. I am aware that the Government are at present considering proposals for introducing in the courts a system of charging fees to litigants on a full costs recovery basis, which means that anyone availing himself of our system of adjudication would be required to pay for that system. I say at once, speaking for myself, that I find that very troubling. I believe that there are some services provided by the community which ought to be paid for by the community generally and not simply by those who have occasion to avail themselves of the services. I hope we never reach the point when every road in the country is maintained at the expense not of the community but of those who have occasion to drive over the road, so that at the entrance to every road we have to pay a toll. That is a difference of political ethics between the Government and those who share my views. This amendment does not seek to change that policy. In fact, it would not be appropriate in this Bill. But I hope that we would hold the line on any application of that policy to tribunals. In saying that, I do speak for the Council on Tribunals.
As long ago as the Franks Committee, and even further back with Donoughmore in 1929, it was said that one of the great advantages which tribunals contribute to the legal system is that they are inexpensive, so that people--landlords, tenants or whoever--are not deterred from pursuing their rights by the fear of the financial consequences. If that line is to be breached, it should not be in the course of a Bill on a totally different
But it is not even that principle which this amendment seeks to uphold. It really is a very modest amendment. It is designed to meet what I believe to be a gap in subsections (5) and (6). The Government have recognised that the consequences of these provisions may be financial hardship for those with limited resources. The Bill gives power to the Secretary of State to reduce or waive fees by reference to a party's financial resources and to empower the tribunal to make an order that one party should reimburse the other for the fees he has to pay. The council welcomes that. In fact, we take comfort from the fact that the Government have obviously addressed their minds to some of the consequences of this problem. However, I believe the proposal falls short of what is necessary in two respects.
If a potential party is told that, with luck, he may find at the termination of the process that he does not have to bear the burden of fees, that may not be sufficient to set his mind at rest. Unless he can be sure, he may be deterred from taking the risk of seeking to enforce his rights. People should not be at risk of a possible order. Those of us who spend our lives trying to predict the outcome of proceedings, either in courts or tribunals, know how notoriously difficult that is. No one can ever have an assurance of what the outcome will be. People should not be at risk of an order which could mean a severe financial disaster for them. People will be deterred from availing themselves of a provision which the Government have very sensibly included in the Bill. Unless they can be assured not that their tribunal fees may be waived or that they may be paid by the other side but that, if they meet the financial conditions, they can be certain that they will not be subject to those fees, I believe they will not take the risk.
The effect of the amendment would be that someone whose means were such that he would qualify for legal aid if he were in civil proceedings in the courts and in accordance with the Government's own rules could be assured that he would not be liable for fees or liable to recompense the other party for an outlay on fees. By definition, it relates to those who cannot afford to pay.
The noble Lord may be able to assure us that any order made under this section will include that provision. If he does that, it will go some way towards meeting our anxieties. But that provision falls short. To go the whole way, I believe that that safeguard should be written into the Bill. Legislation by undertaking leads to difficulties which many of us in our parliamentary careers have written on our hearts. I am sure that, if the noble Lord is persuaded of the necessity of the burden of the amendment, he will have no difficulty in writing it into the Bill. I hope that he will feel able to accept the amendment. I beg to move.
Lord Meston: I support the amendment and in doing so suggest that much of the need for it derives from the really rather curious wording of the proposed new Section 31B(6), which is quite difficult to understand. It
Page 53, line 33, leave out ("amount") and insert ("whole or part").
Page 54, line 4, at end insert--
("( ) Notwithstanding the generality of subsections (5) and (6), an order under this section requiring the payment of fees shall provide that no fee shall be paid or reimbursed by a person whose financial resources are such as to make him eligible for representation under Part IV of the Legal Aid Act 1988 (Civil Legal Aid) without being liable to make a contribution in respect of the costs of that representation.").
9 p.m.
"the order may apply, subject to such modifications as may be specified in the order, any other statutory means-testing regime as it has effect from time to time".
I find that remarkably unclear. Even if it were clarified, I would suggest that there is a strong case for the amendment moved by the noble and learned Lord, Lord Archer.
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