Thesis Submitted For The Degree Of Doctor Of Philosophy At The University Of Leicester

Ci v i l . LEGAL AID A ND LEG A L EX PEN SES INSURANCE:
AN A N A LY SIS

Thesis submitted for the degree o f
Doctor o f Philosophy
At the University o f Leicester

By

Murray Simon Charles Fairclough LL.M
Barrister-at-Law
Departm ent o f Law
University o f Leicester

S um m er 1998


UMI Number: U117376

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ACKNOW LEDGEM ENT
My thanks to Professor Robin W hite for his patience and guidance in the com pilation o f this thesis.


ABSTRACT

Modem civil legal aid, has its roots in the post w ar United Kingdom, being a fundamental component
o f the w elfare state, recognised as such by the political parties o f the time. The provision o f civil
legal aid today is a different anim al and does not share the sam e values as the 'old' schem e. This
analysis will assess the evolution o f civil legal aid, its success and failure, and consider the changes
it has undergone and the forces behind those changes in dictating its current profile as a limited and
franchised public services provision.

Legal expenses insurance, unlike civil legal aid, is a relative new com er as a provider o f access to
civil justice. The scepticism that accom panied its arrival in this country, som e 20 years ago, has
dissipated. Insurers battled with the problem s o f adverse selection, European regulation and the
public perception o f their product, all o f w hich have influenced m arket penetration. The position o f
legal expenses insurance within the civil ju stice system has begun to strengthen and is now openly
recognised and supported by the legal establishm ent. A key objective o f this analysis is to consider
the rise o f the legal expenses insurance m arket in the United Kingdom. This analysis seeks to assess
the history o f legal expenses insurance and evaluate its current position as a viable addition, or

possible alternative, to State funded civil legal aid.

Therefore, it becom es necessary for this study to consider the position o f com parative European
jurisdictions. In addition, the role and reaction o f the legal practitioner situated am idst such
significant and fundamental change is solicited and evaluated since they have, at once, fought change
and yet accepted it in equal m easure.

Finally, this analysis explores the future position o f civil legal aid and legal expenses insurance. It
considers the survival o f the former, grow th o f the latter and the dynam ics o f the State and private
sectors w orking together to m ould a new m odel for the provision o f access to civil ju stice in the
United Kingdom.


TABLE OF CONTENTS
TITLE PAGE
ACKNOWLEDGEMENT
ABSTRACT
TABLE OF C O N T E N T S
TABLE OF CASES
TABLE OF STA T UTES
TABLE OF TR EA T IES AND E U R O PE A N LEG ISL A T IO N
TABLE OF STA TUTO RY IN S T R U M E N T S
INTRODUCTION
PART ONE
CIVIL LEG A L AID
CHAPTER 1 AN H ISTO R ICA L SK ETC H
1.1 The R equirem ent o f Legal Aid for the P oor
1.2 The Political P arties and Legal Aid
1.3 Legal Aid in L itigation
1.4 Legal Aid O ther than for L itigation

1.5 T h e R eport o f T he R ushcliffe C om m ittee

C H A PTER 2 THE RULES OF A C C E SS
2.1 The Need for Structure and C ontrol
2.2 A dm inistration - An O utline
2.3 A ssessm ent C ontrol - T he M erits T est
2.4 A ppeal
2.5 The M eans T est - T he Principle
2.6 C urrent E ligibility
2.7 T he D ecline o f C ivil Legal Aid
2.8 T he M eans Test - A New In terp retation
2.9 Financial Im plications


CHAPTER 3 PROTECTING THE FUND
3.1 M ethods o f Protection
3.2 C ontribu tions - T he C oncept
3.3 A ssessm ent o f M eans
3.4 The C ontribu tion Paym ent
3.5 The V alue o f C ontribu tion R ecovery
3.6 G reen Form E ligibility and C on trib u tion s
3.7 C riticism
3.8 C onclusions
3.9 C osts
3.9.1 C osts O rders and L egally A ided P ersons
3.9.2 O rder For C osts in F avour o f the A ssisted P erson
3 9 3 C osts O rders A gainst L egally A ided P ersons
3.9.4

O rders for C osts A gainst the Legal A id Fund

3.10 C riticism
3.11 C onclusion
3.12 T he S tatutory C harge
3.13 A pp lication o f T he C harge
3.14 M itigation and A voidance
3.15 C riticism
3.16 C onclusion
3.17 G enerally

PA R T T W O
CIVIL LE G A L AID IN PR A C TIC E
CHAPTER 4 CIVIL LEGAL AID A ND TH E P R A C T IT IO N E R
4.1 The Legal Aid P ractition er - A Profile
4.2 Cost C oncern
4.3 The R ew ard - G eneral Perception
4.4 The Legal Aid Board
4.4.1

Paym ent


4.4.2
4.5

P aym ent on A ccount and Interest R eceived on C osts
C onclusion

CH A PTER 5 FR A NC H ISIN G - A B E T T E R DEAL?
5.1 F ranchise - By W hat D efinition

5.2 Existing Inefficiency
5.3 T argeting
5.4 The C oncept o f Q uality
5.5 C riticism
5.6 C onclusions

PA R T T H R E E
LEG A L E X PE N SE S IN SU R A N C E
CHAPTER 6 THE E M E R G E N C E O F L E G A L E X PE N SE S IN SU R A N C E
6.1 Definition
6.2 Legal-Expenses Insurance In T h eory
6.3 Inhibitors and False C om p arisons
6.4 Sm all Beginnings
6.5 The D evelopm ent o f Legal E xpenses In surance
6.6 A ssessing the Future o f LEI

CH A PTER 7 THE RANGE O F PR O D U C T S AV AILABLE
7.1 The M arket Products
7.2 Stand A lone N on-Specific Perils L egal E xp en ses In su ran ce
7.3 Stand A lone Specific Perils L egal E xp en ses In su ran ce
7.4 A dditional Specific Perils Legal E xp en ses In su ran ce
7.5 U ninsured L oss R ecovery Legal E xp en ses In su ran ce
7.6 H elp-lines
7.7 V alue - The Public Perception
7.8 C onclusions


C H A P T E R 8 LEG A L EX PEN SES IN SU R A N C E , PU R C H A SE A ND USE
AN A NA LY SIS
8.1 The Need for A nalysis

8.2 A w areness and P urch ase - The S am p le G roup

8.3 T he Findings
8.3.1 G eneral Insurance A w aren ess
8.3.2 LEI A w areness
8.3.3 LEI C overage
8.3.4 LEI Type
8.3.5 Solicitor Usage
8.3.6 Solicitor Usage C overed by a LEI P olicy
8.3.7 Level o f Interest - Stand A lon e LEI
8.3

C onclusions

8.4

C laim s E xperience

8.5

C onclusions

C HAPTER 9 THE SO LIC ITO RS EX PE R IE N C E
9.1 T he Im portan ce o f the Solicitors E xp erience
9.2 T he Sam ple - Its L im itations and Intent
9.3 P ractice D etails
9.4 C ivil Legal Aid
9.5 Legal Expenses Insurance
9.6 C ivil Legal Aid - Legal E xpenses In su ran ce C om p a riso n
9.7 C onclusions

CHAPTER 10 AN EC D IR EC TIVE STEPS IN
10.1 Introduction - Pre 1987
10.2 T he D irective, U nited K ingdom L egislation its E xten t and A pp lication
10.3 C om p lian ce
10.4 A uthorisation
10.5 C onflicts o f Interest


10.6 C on flicts and the Position o f the S olicitor
10.7 F reedom o f C hoice
10.8 Panel Solicitors
10.9 T he D TI, T he Insurance O m bu dsm an and T h e EC D irective
10.10 Freedom o f C hoice, the R egu lations their In terp reta tio n and the L egal Im p lication s for Insurers
10.11 Insurers - N om ination and R ecom m en d ation o f S olicitors to the Insured
10.12 C onclusions

PART FO UR
EUROPE, A N EW UK GOV E R N M E N T A ND THE FU TU RE
CHAPTER 11 LEGAL AID AND LEG A L EX PE N SE S I N S U R A N C E A EUROPEAN C OM PA R A T IV E STU D Y
11.1 The C om parators
11.2 G erm any
11.3 France
11.4 The N etherlands
11.5 C onclusions

C HAPTER 12 A NEW G O V E R N M E N T A N E W D IR EC TIO N ?
12.1 C onsensus on Cost
12.2 M ackay's Last Stand
12.3 C riticism

12.4 Im plem entation o f the W hite P aper P rop osals
12.5 T he L abour Party - A N o v Legal A id Policy?

C HAPTER 13 CIVIL LEGAL AID AND LE G A L EX PEN SES INSU RA N CE:
CONCLUDING C O M M EN TS
13.1 Legal Aid - L essons from the Past: S olu tion s for T o d a y
13.2 Legal E xpenses In surance - E xistin g P rob lem s
13.3 P ossible Solution s
13.4 P artnership - T he W ay A head


A PPEN D IX A
APPENDIX B
BIBLIOGR A PHY - BOO KS
BIBLIOGRAPHY - ARTICLES
BIBLIOGRAPHY - REPOR TS


TABLE OF CASES
CHAPTER
Adam s x. Riley [1988] QB 372

3

A lm ond x. M iles [ 1992] The Times 4 F ebruary 1992

3

Alpine Investm ents C ase C- 384 93 [1995] HCR 1-1141;
[1995] 2 ( M LR 209

10

Auten x. R ayner [ 1960] The Times 29 A pril 1960

3

Barker x. St Quintin [ 1844] 12 H and W 441

3

Calderhank x. Calderhank [ 1976] FLR 93

3

Clarke x. Clarke (No.2) [ 1991 ] 1 FLR 179

3

Cooke x. H ead [No.2] [ 1974] 2 All FR 1124

3

Cope x. United D airies (London) Ltd. [1963] 2 QB 33

3

C urling x. The Law Society [1985] 1 All HR 705

3

Danners v. D anners (1974) 118 SJ 168

3

D avies x. Taylor (No.2) [1973] 1 All ER 959

3

D raskovic x. D raskovic [1981] FLR 87

3

D rennan x. A ndrew [ 18 6 6 ] 1Ch A pp 300

1

Evans x. Evans [ 1990] 1 FLR 319

3

F ederal Steam N avigation Co. Ltd. v. D T I [ 1974] 2 All ER 97.

10

F ord x. F ord [1981] The Times 16 January 1981

3

Francis x. Francis and D ickerson [1955] 3 W LR 973

3

G eneral Accident L td x. F oster [1972] 3 All ER 877

3

G ojkovic x. G o jkovic{ 1992] 1 All ER 267

3

Hanlon x. The Law Society [1981] AC 124

3

H anning x. M aitland (N o.2) [1970] 1 All ER 812 (C’A)

3

Hunt x. R.M. D ouglas (Roofing) Ltd. [1988] 3 All ER 823

2


Iverson x. Iverson [1966] 1 All ER 258
Kelly v. London Transport Executive [1982] 2 All ER 842

3

Lewis v A v e n ir (No.2)[ 1973] 2 All ER 231

3

Litster x. Forth D ty D ock and E ngineering Co Ltd. {In R eceivership) [1989] ICR 341

10

Littaur x. Steggles P alm er [1987] 1W LR 287

3

M anley x. The Law Society [ 1981] 1 W LR 335

3

M cD onnell x. M cD onnell [1977] 1 W LR 34

3

M edical D efence Union Ltd. x. D epartm ent o f Trade [1980] Ch 82

10

Neill v Glacier M etals Co. Ltd. [1965] 1 QB 16 26

2

Oldfield x.Cohhett [ 1845] 1 Phil.613

1

Pickstone x. Freem ans [1989] 1 AC 6 6

10

Povey v. Povey [ 1970] 3 All ER 612

3

R v. Legal A id Com m ittee No. I (London) L egal A id Area, Ex p a rte R ondel
[1967] 2 Q.B. 482. D.C.

2

R and T. Thew Ltd. x. Reeves [ 1981 ] 2 All ER 964

3

Re H and Others (M inors) (No 2) (1992) 142 N LJ 1004 (H L)

3

Rew e Zentral AG v. B u n d esm o n o p o lverw a ltu n g fu r B ranntw ein C ase 120/78 [1979]
ECR 649

10

Rodgers x. British Transport C om m ission (1963) 107 Sol J 619

3

Scallon v. Scallon [1989] The Times 4 O ctober 1989

3

Simmons x. Sim m ons [1984] 1 All ER 83

3

Welsh v. Hole [1779] 1 Doug KB 238

3


TABLE OF STATUTES
CHAPTER

Adm inistration o f Justice Act 1969

2

Appeal (Form a Pauperis) Act 1893

1

Children Act 1989

3

Consum er Arbitration A greem ents Act 1988

11

Courts and Legal Services Act 1990

4

European Com m unities Act 1972

11

Forma Pauperis Act 1495
(An Acte to adm ytt such persons as are poor to sue in form a pauperis)

1

Inheritance (Provision for Fam ily and D ependants) A ct 1975

3

Insurance Com panies Act 1982

11

Legal Advice and A ssistance Act 1973

2

Legal Aid Act 1960

2

Legal Aid Act 1974

3

Legal Aid Act 1988

2

Legal Aid and Advice Act 1949

1

M arried W om en’s Property A ct 1882

3

M atrim onial C auses Act 1937

1

M atrim onial C auses Act 1973

3

Poor P risoner's D efence Act 1930

1

Representation o f the People Act 1949

2

Solicitors Act 1974

3

Statute Law R evision and Civil Procedure Act 1883

1


TABLE OF TREATIES AND EUROPEAN LEGISLATION
CHAPTER

Legal Expenses Insurance D irective 1987 [1987] OJ L 185X77

6

Single European Act 1986

6

Treaty o f Rom e 1957

6


TABLE OF STATUTORY INSTRUMENTS

CHAPTER
Civil Legal Aid (A ssessm ent o f R esources) (A m endm ent) R egulations
1993 SI 1993 No.788

3

Civil Legal Aid (G eneral) R egulations 1989 SI 1989 No. 339

2

Insurance Com panies (Legal Expenses Insurance) (A pplication For
Authorisation) Regulations 1990 SI 1990 No. 1160

11

Insurance C om panies (Legal Expenses Insurance) R egulations 1990
SI 1990 No. 1159

6

Legal Advice and A ssistance R egulations 1989 SI 1989 No. 340

3

Legal Aid (A ssessm ent o f R esources) R egulations 1989 SI 1989 No. 338

2

Legal Aid (General) (A m endm ent) (No. 2) R egulations 1988 SI 1988 No. 1938

3


INTRODUCTION

This Study has a single central theme. That is, the rise of legal expenses insurance in the United
Kingdom since it first arrived on its shores in the early 1970’s. In order to properly debate this
theme it is vital to locate it within the context of the historical development of civil legal aid and to
examine its current position. As a result, this study is of two very different mechanisms for the
delivery of civil legal aid. There are, of course, certain principles and a consistency of values
common to both in achieving that end. Each provides the litigant with legal services, assesses the
merits of any application for assistance and, where appropriate to do so, funds the litigation.
However, statutory civil legal aid is an historical creature that has been viewed as a cornerstone of
this country’s welfare state, albeit significantly remodeled in recent years.

The other, legal

expenses insurance, is a private sector creature of fortune. It has developed and grown by fulfilling
a perceived need left by the steady reduction in eligibility for state-funded legal aid.
This analysis attempts to break down each legal service delivery system into its component parts in
order to assess accurately and comprehensively their relative positions in the United Kingdom
today. To achieve this, the study is divided into four sections.
Part One considers in detail the principles upon which civil legal aid was founded in 1949, the basis
of eligibility and the mechanisms available for protecting the legal aid fund. These sections of the
study are important to its central theme since the rise of legal expenses insurance is inextricably
linked to the limitations and failures of statutory civil legal aid. Civil legal aid was not created in a
vacuum. It followed a system of aid for the poor that had developed ad hoc and was far from
satisfactory. With cross party support, a comprehensive set of statutory measures were put in place
in 1949 which, it was perceived, would deliver access to justice for many millions of people in

England and Wales to whom it had previously been denied. Significantly, the middle classes of this
country were to be included amongst those 'enfranchised' by the new civil legal aid scheme.


By the 1990's it was evident that despite the laudable principles upon which it was founded, the
civil legal aid scheme was failing. It was dogged by cumbersome administration, rising cost to the
taxpayer, lack of focus and rapidly declining eligibility as the blunt instrument of the means test
was used to define, ever more narrowly, those members of society able to benefit under the scheme.
The taxpayer was being asked to subsidise a scheme that grew more expensive year on year and one
in respect of which most taxpayers could take no advantage. The inequity of this situation was
unsustainable. The civil legal aid scheme was failing the middle classes of this country who were at
the same time, being enticed by the private provision offered by legal expenses insurers.
The previous Lord Chancellor, Lord Mackay, to his credit, embarked upon a quest for change and
rationalization of the civil legal aid provision in the teeth of criticism from many legal aid
practitioners and a number of academics opposed to the proposed changes. Part One of this study
details the success and failures of the civil legal aid scheme and the reasons behind Lord Mackay's
attack on eligibility. The link between the failures of civil legal aid and the emergence of legal
expenses insurance is firmly indicated, as is the need for the middle class taxpayer to have some
form of insurance (either state or private) should they suffer a civil legal dispute. The taxpayer’s
reluctance to pay a premium for no cover under the civil legal aid scheme gave Lord Mackay a clear
platform for reform.
Part Two explores civil legal aid and the role of the practitioner. The concluding chapter of this
section considers in particular the concept of franchising. Once more, such analysis assists the
central theme of this study since the practitioner's perception of statutory civil legal aid has been
important in respect of their attitude to reform and to the legal expenses insurance industry. In
particular the requirements of the Legal Aid Board, with regard to franchising, display interesting
similarities to those of legal expenses insurers considered later in the study.
If the civil legal aid scheme is to survive, in whatever form, it must represent value for money. In
this respect, there was grave cause for concern from assisted person and practitioner alike, let alone
from those not eligible to benefit under the scheme. Part Two addresses these concerns and

considers the service provided to the assisted person. Is this a second rate service provided by cutprice junior lawyers, or is that charge unjust and apocryphal?
Conversely, why are so many lawyers willing to undertake civil legal aid work if the profits in so
doing are as slight as alleged? Furthermore, this section considers the practitioner’s defence of the
legal aid system that has seemingly failed to provide either a proper service to its clients or just
reward to its practitioners.
In an attempt to deliver a value for money product, franchising was introduced. By design,
franchising is intended to eradicate the failures and inefficiencies of the past system and to deliver a
focused and efficient quality of service under contract with the Legal Aid Board. This is a major
shift away from the principles upon which legal aid was founded and is akin to the existing
relationship between practitioners and insurers within the legal expenses insurance industry.
This part of the study assesses the concept of franchising, the inherent problems of quality control,
targeting need via appropriate distribution channels and the fear and potential pitfalls for the
franchisee practitioner. Whilst in the short term, larger practices have emerged victorious over their
smaller rivals, if continuation as a franchisee is, in the future, to be determined by cost alone, the
long term prospects are less bright. The prospect of the Legal Aid Board driving down proposed
franchisee costs in ignorance of the practice's previous investment is a real cause for concern.
Finally, a comparison is drawn between the development of contracted services under a franchise
and as between practitioner and insurer. In the case of the former there has been a conscious attempt
to move forward by consent which is absent in respect of the latter. Insurers regulate and control the
practices they use with the ultimate sanction of removal from their panel. However, in each case
there is a shared goal, that of a practical solution to the problem of cost effective access to civil
justice.


The Third Part of this study, in equal detail to Part One, is expressly concerned with the emergence
of legal expenses insurance, product specification, purchase and use, the practitioner’s experience
and European regulation. Part Three considers the definition of legal expenses insurance and the
types of such insurance currently available in the United Kingdom. Its historical development is

also detailed along with the role of the practitioner and the importance of the risk control
mechanisms employed by the insurers, including a merit test. The insurers have had the unenviable
task of trying to grow their business whilst at the same time avoiding adverse selection. This has not
been an easy ride and mistakes have been made, particularly in the stand-alone market, which have
had a profound effect on the future development of the industry. These effects are discussed along
with the emerging solution of the add-on product.
The legal expenses insurance industry has long been in need of establishment support. Until very
recently, there was a marked reluctance to provide collective support. This deeply frustrated the
insurers and depressed the growth of their market. This part of the study tracks the reaction of the
establishment in the guises of the Lord Chancellor's Department, The Law Society and the Legal
Aid Board, to the emergence of the legal expenses market.
This section contains a detailed product comparison study of the current market and an analysis of
purchase and use, which includes original data in respect of the claims experience of one of the
leading insurers. It is important for this study to evaluate the extent to which the public shares the
insurer's contention that legal expenses insurance provides an affordable 'gateway' to civil justice.
Again, the writer draws on information taken from a professional sample study, commissioned by
his employer at the time, and undertaken with his assistance.
Chapter 9 of this section, by way of the writer's original sample study, aims to assess and analyse
the solicitors' experience since their observations in undertaking work for insurers and the Legal
Aid Board alike, are an important contribution to this study. The study shows practitioners to be


highly practical and generally in favour of the rising legal expenses insurance market. The
solicitor's concerns are discussed drawing on material from the sample study.
Finally in Part Three, the effect of European regulation on the legal expenses insurance industry is
considered. The European Directive and its regulations are assessed in detail along with its extent
and application. In particular, the regulations concerning conflicts of interest are studied closely
since it is within these regulations that the insured has been granted freedom of choice of lawyer.
For many reasons, it was this requirement which rocked the legal expenses insurance industry on its
heels at its introduction. The problem with variable legal costs in the United Kingdom was

singularly troublesome in this regard and left it on an uneven playing field compared to its
European counterparts such as Germany. The use of panel solicitors is detailed along with the
attitude of the insurers, the Department of Trade and Industry and the Insurance Ombudsman to
such panels. The insurance industry’s interpretation of freedom of choice of lawyer is carefully
scrutinised.
Part Four attempts to draw comparisons in respect of this country's position and that of a number of
its European neighbours. Following this comparative study, the impact of a change of government
on the existing situation is considered along with the anticipated model for a future integrated
delivery of civil legal services between the private sector and the State.
In 1997, gross premium income for the United Kingdom legal expenses insurance market was just
over £100 million. The number of risks covered, according to Association of British Insurers, was
around 12 million. While the market for traditional legal expenses insurance in the United Kingdom
is growing, the potential for modernising this form of insurance is obvious from examining the
success of legal expenses insurance in Germany.
The gross premium income of legal expenses insurance in Germany for 1997 was almost 5 billion
deutschmarks (£1.7 billion). Some 50 per cent of the population have legal expenses insurance
compared with between 10-20 per cent in the United Kingdom. For this reason alone it is necessary
for this study to examine a selection of European countries by way of contrast to the position of the


United Kingdom. Germany is considered along with the Netherlands, which has a strong civil legal
scheme similar to our own and France since it was the birthplace of legal expenses insurance.
The assessment of these countries experiences in the legal expenses insurance market is important,
since it enables the United Kingdom to consider the future potential and growth of its own market.
It is significant that Germany’s success, in particular, is seen as being due to early specialisation of
the insurance companies in legal expenses, the benefits of lawyer’s fixed fees, restricted legal aid
provision and the absence of conditional fee arrangements.
The effect of the new Government is assessed in this part of the study since conditional fee
arrangements are due to be extended in 1999 amidst other changes afoot which could have a
significant effect on the legal expenses market. Lord Woolfs proposals for the reform of civil

procedure include fixing costs according to the claim value. Although there has been some delay in
implementing his proposals and doubts over the viability of fixed fees, it is likely some element of
greater predictability will be part of the reforms. The safety net of civil legal aid is slowly being
removed but only to be replaced by the fall back of conditional fees. The public debate on
conditional fees in place of much of the existing civil legal aid scheme has raised public awareness
of the insurance industry’s role in financing litigation. The market is changing and the potential for
the insurers is there.
Generally, this study contains the writer’s own original research particularly with regard to the legal
expenses insurance industry. The research was drawn from the writer’s personal experience and
knowledge of the industry. The writer was employed from 1986 - 1995 as a senior legal advisor to
the Legal Protection Group Limited (a wholly owned subsidiary of The Royal and Sun Alliance
Insurance Company Limited) and thereafter within a firm of solicitors dealing with legal expenses
insurers as clients. The writer is currently employed as General Manager of Legal Services for
Abbey Legal Protection Limited.
This study is current up to the summer of 1998.


PA RT ONE


1

Chapter 1

An Historical Sketch

The creation o f statutory civil legal aid in the U nited K ingdom after the Second W orld
War was a m ajor social reform. A nalysis o f the driving forces behind its creation in 1949
are significant to this study since its developm ent was largely due to the recognised
failure o f the charity-based system that preceded it. A rguably, legal expenses insurance

has developed sim ilarly as a result o f the failures o f the existing civil legal aid system.
Consideration o f the principles upon w hich civil legal aid was based in 1949 is also
useful to this study since m odem civil legal aid has shifted m arkedly in respect o f those
members o f our society w hich it is intended to assist.

1.1

The Requirement O f Legal Aid For The Poor

"Where there is no legal protection there is in effect no law.

In so far as citizens are

precluded from access to the courts, the rules o f the law which they w ould like to invoke are for
them as good as non-existent."1

It is largely upon this prem ise that the provision o f civil legal aid for the financially
disadvantaged developed

from

early roots in England and W ales.

For, in pure

jurisprudential terms, m ankind will inherently set itse lf standards or codes o f conduct, for
a number o f reasons w hether m oral, social, national or religious. O bedience to such are
then prescribed by the law. A rguably it follows, in theory, that:
"...inability to consult or to be represented by a lawyer m ay am ount to the same thing as
being deprived of the security of the law. Legal aid is the m ethod adopted to ensure that no one is

debarred from professional advice and help because of lack of funds. "2

C oh n H.J. " L eg a l A id Lor the Poor: A S tu d y in C o m p a r a tiv e L aw and I.eg a l R e fo r m ” ( 1 9 4 3 ) 5 9 I.Q R , Part 1 2 5 0 ,2 5 1 .
M a tth ew s L .J.T . and A D M . O u lto n , O n I .e g a l A id a n d L e g a l A d v ic e , L o n d o n , B u tterw o rth s 1971 p . l .


2

It has been argued that the extent to w hich the State is w illing to grant legal protection to
its subjects can be m easured by the extent to w hich legal assistance is provided by the
State.3 Therefore:
"...the question w hether legal aid should be granted in a few exceptional cases and as a
matter of charity only, or w hether it should be claimed as a m atter of right by anybody who is
financially unable to secure it himself, goes therefore to the foundations o f the law."4

The need for legal assistance in one form or another has long been recognised and is
perhaps as old as the practice o f the law itself. H istorically, lawyers have counselled and
represented the poorest o f folk, before the courts w ithout charge, regarding it as a
necessary charity.5 The history o f legal aid in England and W ales as a charity based
system dates back to the ninth century and continued in varying forms until the
development o f the w elfare state after the Second W orld War.

Arguably, the existing charitable system was inflexible, o f lim ited availability, arbitrary
and not recognised by m any o f its users as charitable, due to the frequent requirem ent o f
a deposit. It becam e increasingly evident that only som e level o f state involvem ent in the
legal aid scheme could provide a m ore socially acceptable w orking m odel.

E. J. Cohn6 writing in 1943 succinctly described the argum ent for a state system o f legal
aid:
"There is an astounding contrast between the fact that the law is state-created and stateadministered on the one hand and the fact that the State has divested itself o f all powers w ith regard

to the granting of legal aid on the o th er h an d ."

And against the system o f charity, he wrote:
"All grants depend on the num ber o f volunteers from the tw o branches o f the profession
prepared to render assistance free of charge.

If n o volunteers are forthcom ing, n o aid can be

C ohn , s u p r a n. 1 2 5 1 .
Ibid.
l or a gen eral v ie w o f su c h ch a rita b le le g a l w o rk s e e for e x a m p le , L gerton , R .,‘ H isto r ica l A s p e c t s o f L eg a l A id ’ ( 1 9 4 5 )
61 l.Q R at p .87 and M a g u ire J .,’ P o v e rty and C iv il l it ig a t io n ’ ( 1 9 2 3 ) 3 6 H arv I. R e v , 3 6 1 .
C o h n L.J. ‘ L eg a l A id for the Poor: A S tu d y in C o m p a r a tiv e l a w and L eg a l R e fo r m ’ ( 1 9 4 3 ) 5 9 I.Q R Part 1 2 5 0 ,2 5 1 .


3

granted.

If an insufficient num ber o f volunteers is available, insufficient facilities of legal aid will

exist."

The ineffectiveness o f the present system had been exposed at a tim e w hen litigation
generally was increasing. The cost o f litigation also increased and yet there was no state
provision for those who could not pay. The value o f granting people rights w here there
was no realistic possibility o f enforcing them was called into question.

Those against state assistance in accessing the right to ju stice argued that an increase in
the availability o f legal aid for the poor in litigation m ight m ake people m ore litigious.7

This was countered w ith an assertion that, if this resulted in a greater am ount o f justice
being dispensed, it was to be applauded as alleviating the currently unsatisfactory state o f
legal aid.8

After the First W orld W ar there w as increasing support for state intervention and
assistance in many social aspects. D uring the decade o f the 1940's there w as w idespread
agreement between social com m entators and politicians that legal aid was a service
which a m odem state owed to its citizens as a m atter o f principle.

It w as part o f the

protection o f that citizen's individuality, part o f the contem porary conception o f the
relation between the citizen and the State.
citizens, rich and poor alike.

The law was m ade for the protection o f all

It w as the duty o f the State to m ake its m achinery w ork

alike for the rich and poor.

As poverty was a social state for w hich the burden o f relief rested w ith the w hole o f
society, legal aid was a m eans that in certain circum stances could, in part, alleviate the
consequences o f poverty.

For this reason, it was argued, it should be a burden on the

entire com m unity, not on the shoulders o f one charitably orientated group.

S e e tor ex a m p le : R e p o r t o f th e C o m m itte e to E n q u ir e in to th e P o o r P e r s o n s ’ R u le s (l-irst 1.a w r e n c e R ep o rt), ( ’rod.4 3 0 ,

L o n d o n , 1919.
S e e lor e x a m p le : R e p o r t o f th e C o m m itte e to th e S e e r e t a r y o f S ta te f o r S c o tl a n d , C m d .5 4 3 5 , 1 9 3 7 .