Day 157 - 18 Jul 95 - Page 28


     
     1        fact, lawyers in long running cases, lawyers on legal aid,
     2        can get interim taxation for the work they are doing and
     3        get payments out of public funds in lieu of receiving, at
     4        the end of the case, legal aid payments.  So if lawyers and
     5        legal firms can get payments out of public funds in lieu
     6        of -----
     7
     8   MR. JUSTICE BELL:  No, I think what you are thinking of is if a
     9        solicitor and/or counsel act under a legal aid certificate,
    10        they agree to act on the basis that the legal aid fund will
    11        meet their reasonable costs and fees and disbursements.
    12
    13   MR. MORRIS:  Yes.
    14
    15   MR. JUSTICE BELL:  It may well be that, at the end of the day,
    16        if the party they represent is successful there will be an
    17        order that the other side pay the costs.  But solicitors
    18        and counsel can spend time and energy, confident that they
    19        will not go unrewarded, that they will be paid out of the
    20        legal aid fund, at least if the costs are not as a result
    21        of various orders paid by the other side.
    22
    23        This is not much comfort if there is a very long case and
    24        they have to wait right until the end of it and, in the
    25        meantime, are not getting paid anything at all, because
    26        lawyers have bills to pay as well as other people.  So
    27        there are various provisions which enable them to receive a
    28        percentage of the costs of their fees as the case goes
    29        along, but that is not the situation here at all.
    30
    31   MR. MORRIS:  If, at the end of the case, the Defendants' costs
    32        can be ordered to be paid -----
    33
    34   MR. JUSTICE BELL:  Until we get to the end of the case I do not
    35        know what the order for costs will be.  It is absurd to
    36        suppose that it will not pay some attention to the result
    37        of the proceedings, i.e. who is successful.
    38
    39   MR. MORRIS:  Yes, but what we are saying here is the discretion
    40        exists to pay the costs of litigants in person without
    41        limiting that discretion unless the Plaintiffs can show
    42        authority limiting that, and that one particular method,
    43        I mean, for example, one example of where public funds are
    44        available to barristers and get hardship payments, or
    45        solicitors involved on legal aid in long running cases, to
    46        get payments throughout a trial from public funds in lieu
    47        of what happens at the end of the case should also apply to
    48        litigants in person.  Arguably more so.
    49
    50        Therefore, that is just an example of how the discretion 
    51        used for the benefit of solicitors and barristers should 
    52        also be used for litigants in person in a long running 
    53        case, or in a case where it is clear that the case may
    54        become so unequal that it will be an abuse of process to
    55        continue it.  That must be an area where any discretion
    56        that exists should be exercised, we would submit.
    57
    58        So, either an order or an indication should be given that
    59        the cost of transcripts will be paid for out of public
    60        funds under those provisions.

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