Civil legal aid 1963 The present position in British Columbia As in criminal cases, there is no government operated or government sponsored system of civil legal aid, and the only provision is that made by the legal profession itself. In Vancouver, a legal aid clinic is held in the Courthouse on Wednesday evenings. Lawyers attend on a voluntary basis to give spot advice to people who cannot afford the services of a solicitor. Advice is given both on litigious and non-litigious matters. If court proceedings appear to be necessary, then a solicitor in private practice may be asked to take the case without payment. Generally speaking, voluntary legal aid is available to any person unable to afford a solicitor for any court proceedings of a civil nature in British Columbia, whether the applicant is the intended plaintiff or the intended defendant, but subject to the following list of exceptions, which has recently been drawn up: Matrimonial causes (eg. divorce, separation, maintenance, etc.) unless legal aid is requested by a social worker for the benefit of children, or by a medical practitioner because a danger to health is involved. Defamation. Breach of promise of marriage. Probate or administration of estates, except where the refusal of legal aid would cause undue hardship. Election disputes. Proceedings after judgement for a liquidated sum. Bankruptcy matters after a receiving order. Family Court Cases. Cases within the jurisdiction of the Small Debts Court. Appeals, except where there appears to have been a clear miscarriage of justice. Where the conduct proceedings would be of no substantial benefit to the applicant. Where the costs, calculated as if it were not a legal aid case, would exceed the amount involved. Where the applicant, being an intended plaintiff, is not a Canadian citizen and is resident out of the jurisdiction. In any case where the Legal Aid Committee decides that because of special circumstances legal aid should not be granted. The solicitor handling the case must obtain approval of any disbursements that he or she finds necessary, and these are later reimbursed to him or her out of a legal aid fund. If the assisted person is successful, then any costs recovered from the other party should be paid into the fund. If the other party succeeds then there is no provision for the payment of his or her costs, except of course, that he or she may be able to recover something from the aided person himself. The number of civil legal aid cases referred to solicitors in Vancouver for the year ending 30th of September 1962 was something less than 230 (calculated from the figures published in "The Advocate" for September-October 1962). We understand that New Westminster and Victoria have schemes similar to Vancouver. Outside these cities, the availability and efficiency of legal aid varies according to the benevolence of the lawyers in the particular community. Criticisms of the present system The main criticism of the present system is not that it is administered by the profession, but rather that the legal profession is left to bear the financial burden, and also that it is left with an unfettered discretion to determine the scope of the assistance made available. That justice is not the right of anyone but rather a luxury for the rich remains a truism mitigated only by the charity of the legal profession. Further, a glance at the types of cases excluded and at the statistics of cases handled indicates that the present system is very limited in scope and slight in volume. Also the limited amount available for disbursements results in legal aid cases often being handled in an impoverished way compared with litigation for paying clients. There is also a suspicion commonly expressed, but often unjustified, that the practising lawyer will always give priority to paid work, so that legal aid cases will receive the minimum of attention. In any event, the fact of the service being unpaid tends to induce a feeling that the litigant is disqualified from complaining about the quality of assistance received. Finally there is the psychological factor that probably excludes many of the most deserving cases from assistance. To many, the idea of charity imports a social stigma and a sense of subservience. Thus there are substantial numbers of people suffering injustices that they cannot afford to remedy by court process, but whose sense of self-respect precludes them from asking for the benevolence of the profession. The need for reform The administration of justice according to law is one of the hallmarks of a civilized society. Another is the protection of the weak against the strong, whether that strength be physical or economic. Both of these factors require that the judicial determination of disputes should be readily available, and yet in this country access to the courts is severely limited. In our view, it is essential to the proper administration of justice under our adversary system that a legal aid scheme be established in accordance with the following principles: The initial organization and financing of the scheme should be accepted as a responsibility of government. With regard to civil legal aid, it is clear under the B.N.A. Act that this must mean the Provincial government. The determination of the circumstances in which legal aid will be available and all other factors affecting the scope of the scheme should also be a responsibility of government. The administration of the scheme should not be a function of the government. We say this mainly because in a large number of disputes the Provincial Government is an interested party. It does not seem essential or desirable that legal aid should always be free, but rather that it should be available on such terms and in such circumstances as to make access to the courts a realistic possibility. Lawyers engaged under the scheme should be paid reasonable remuneration. The only scheme familiar to us that is reasonably satisfactory is the one now in effect in England, and this we shall now consider. The English system This was established by the Legal Aid and Advice Act 1949. The legislation, regulations and forms can be found in the "Handbook on Legal Aid", and particulars of the operation of the scheme to date can be found in the 12th Annual Report of the Law Society on Legal Aid, both published by H.M.S.O., London. Under the scheme, legal aid can be obtained for the pursuance or defence of almost any civil claim, and for the conduct of almost any type of civil court proceedings. Exceptions are claims for defamation, breach of promise of marriage and seduction, and proceedings on judgement summonses in the county court. A person seeking legal aid will first of all complete a form, which can be obtained at the office of a solicitor, a courthouse, or a Citizens’ Advice Bureau. The application will then be considered both by the Local Committee, which is a group of barristers and solicitors organized by the Law Society, and also by the National Assistance Board. The function of the National Assistance Board is to determine the financial position of the applicant. Generally speaking an applicant will be eligible if his or her disposable income (i.e. excluding his or her house) does not exceed 500 British pounds. The main function of the Local Committee is to determine whether there are reasonable grounds in law for taking, defending, or being a party to the intended proceedings. Secondly, if the applicant is eligible, then the Local Committee determines how much he or she should contribute towards the costs of the case and when his or her contributions should be paid. If the application is accepted, then the applicant, if he has not already chosen a solicitor, may select one from the panel of those willing to take cases under the scheme. There is a similar panel of barristers, and if necessary, the solicitor will advise the applicant on the choice of counsel. Most barristers and solicitors who handle litigation at all are members of the panels. The lawyers are paid out of a legal aid fund. The solicitor is reimbursed in full for his or her disbursements, and both the solicitor and the barrister are paid at least 85% of the fees which would normally be payable on a solicitor and client taxation. Thus in many cases there is a slight reduction from the normal fee, but this is partially compensated by the absolute guarantee of payment, and most lawyers regard the remuneration as reasonable. In the year ending 31st of March 1962, 105,224 applications for legal aid were received, and 75,616 were granted. Also 1,914 applications were granted emergency certificates for assistance pending the determination of their applications. The number of cases in which final results were reported during the year was 37,167. The main reason why the number of new applications greatly exceeds the number of cases concluded is that legal aid was extended for the first time during the year under review to matrimonial proceedings in magistrates’ courts. In 79% of cases there was judgment for the assisted person, in 14% there was judgment against him or her, and 7% were settled. During the 12 year period since the scheme began, there have been 583,863 applications of which 411,836 were granted. The volume has increased each year as the scope of the scheme has been gradually extended. The total cost so far is 31,112,000 British pounds. The average annual cost to the taxpayer for the first 12 years of the scheme works out at approximately 7 cents Canadian per head of the population. The scheme also provides for legal advice, whether in potentially litigious or non-litigious matters. This is partly statutory and partly organized by the Law Society. Anyone over 16 years of age can obtain legal advice for a fee of approximately $3 Canadian by a conference with a solicitor limited to half an hour. If the person cannot afford even this fee then there is provision for payment to the solicitor out of the legal aid fund. During the half hour, the solicitor may be able to clear up simple problems, or advise the person of the cost of any further legal services he or she may need, or on his or her eligibility for legal aid. If necessary, the conference can extend beyond the initial half hour, with the solicitor being remunerated at $3 per half hour, by the client if he or she can afford it, and by the legal aid fund in other cases. In the year ending 31st March 1962, 43,205 people received advice under the statutory branch of the scheme, the solicitor being paid out of the legal aid fund. On the whole, the English system is generally accepted as satisfactory throughout the country, and meets with the approval of the legal profession and all political parties. The most significant criticism of the scheme is the allegation of unfairness to non-assisted litigants. Thus for example, if a legal aid plaintiff is unsuccessful, then there is no provision for the defendant’s costs being paid out of the legal aid fund, and the possibilities of recovery against the assisted litigant are usually very limited. However, legislation is now before Parliament that goes some way towards remedying this defect. Another criticism is that the scheme is sometimes unfair to those who are just a little too prosperous to qualify. Thus a middle class family for example, might be able to afford an ordinary trial in the High Court, but not if it requires expert witnesses and protracted argument. One proposal being mooted is that the means test should be completely abolished, but of course the contributions of the individual would still be assessed proportionally to his or her disposable income and capital. Recommendations We recommend that a scheme of legal aid should be established in the Province of British Columbia by provincial statute, modelled on the English system, but some variations. The main points of the scheme we propose are: Subject to the following provisions and exceptions, legal aid should be available to any person resident in the province for any civil court proceedings commenced in the province, whether at first instance or an appeal, and whether the applicant be the intended plaintiff, or any other party. Exceptions: a. Matters arising as part of the ordinary course of business of the applicant b. Matters arising out of the pursuance of a speculative venture conducted by the applicant for profit c. Cases within the jurisdiction of the small debts court d. Election disputes e. Proceedings after judgement for a liquidated sum. A lawyer should be appointed on a salary as a full-time legal aid administrator for the province. She or he should have an office in Vancouver, but be responsible for the organization of the scheme throughout the province. She or he should have security of tenure. It is obviously important that an individual should be chosen of sufficient calibre, and with imagination and enthusiasm for the new venture. Applications for legal aid should be made on prescribed forms, which should be available at solicitors’ offices, courthouses, and social agencies. Each application should be considered by a local legal aid committee, consisting of two lawyers and one social worker from a social welfare office. Such a committee should be established in every municipality, and in other units of appropriate size. In Vancouver, the administrator should be one of the legal members of the committee. If the proceedings involved are within the scope of the scheme, then the committee should determine whether the applicant has reasonable grounds in law for taking, defending, or otherwise being a party to the proceedings, or for launching or opposing an appeal. This point should be decided in favour of the applicant if either one of the legal members is of that opinion. Second, the committee should determine the amounts that the applicant should contribute to the costs of the proceedings, and the times and circumstances in which those amounts should be paid into the fund. Contributions may be by a lump sum, by instalments, and by a proportion of the recovery, according to the circumstances. Regulations should be drawn up for the guidance of the committee in fixing these amounts. Subject to the criteria established by the regulations, the fixing of the contributions should be a matter of coordination between the social worker and the legal members, the former using his experience on what people can reasonably be expected to pay, and the latter giving their experience on the costs of litigation. Any excess of contributions over actual costs would be refunded to the applicant. Thus there would be no means test to define the category of persons eligible under the scheme, but the assessment of contributions would increase with the wealth of the individual up to the point where it was not worth his while to become an assisted litigant. This is better than a fixed means test because the cost of litigation varies greatly, and one cannot predict beforehand what the actual costs will be. For example, for proceedings in the Supreme Court, it might be decided by the committee that the particular applicant can afford to pay $2000 over 2 years plus 10% of any general damages. Nevertheless he or she may decide to accept legal aid to protect him or herself against the possibility that actual costs may exceed that amount. The applicant should be free to choose a solicitor from a list of those willing to participate in the scheme. The solicitor conducting the case should be reimbursed out of the legal aid fund for all reasonable disbursements and 90% of the fees taxed on a revised solicitor and client scale. If the assisted person is unsuccessful and costs are awarded against him or her they should be paid out of the legal aid fund. This possibility should be borne in mind by the committee when making the initial assessment of the contributions of the assisted person. Where a recovery has been made, then the lawyer conducting the case should consult the administrator before delivering the proceeds to the assisted person, and a lien should be exercised for any outstanding contributions to the fund. The income of the legal aid fund should be derived from: a. Provincial grant from tax revenue b. Contributions by assisted persons c. Costs recovered from other parties d. The 10% deduction from lawyers’ fees. The possibility of having legal aid cases conducted by counsel on a salary should be kept in mind, but not adopted in the first instance. Some cases might however, be taken by the administrator if he has time available. Consideration should be given to extending the scheme in prescribed circumstances to persons who are not residents of the province. Consideration should be given to extending the scheme to certain administrative tribunals. Provision should be made for legal advice, and in exceptional circumstances for legal aid in non-litigious matters. For legal advice, we propose the adoption of half hour conferences with a solicitor for a fee of $5.00. We believe that a service like this is already available, but few members of the public know about it. During that time, the solicitor could advise the client on simple problems, estimate the cost of any further services that may appear necessary, and advise on any application for legal aid. For legal aid in non-litigious matters, it seems impossible to define in advance the circumstances in which this would be meritorious. We suggested that in the first instance, legal aid for non-litigious matters should only be granted in exceptional circumstances in the discretion of the legal aid committee. When a body of experience has been built up, it may be feasible to prescribe more definite rules. Obviously a great deal of thought is required in formulating the details. But a scheme of this kind has worked in England for 12 years, and in our view it can work here too. The adoption of such a scheme seems essential if the administration of justice is to be brought into line with the ideals of a democratic society.