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Lord Borrie: In the course of his speech, the noble Lord, Lord Hunt of Wirral, made some powerful and well-argued points. When he cited the Lord Chief Justice and the Master of the Rolls at some length about their concern for adequate resources for civil litigation, I could not disagree with him. How could I disagree with the words of such eminent people as the heads of civil justice in this country? However, I am not entirely sure of the direct connection between that and what we are discussing in Clause 87, which is concerned with the recovery of fees from litigants.

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I noticed that the noble Lord, Lord Goodhart, distinguished between commercial and other litigation. He rightly said that commercial litigation is often engaged in by wealthy corporations, which may well be able appropriately to afford the principle of full recovery of costs. Why should we disagree with him? Many may say—I hope that this does not sound anti-foreign—that because our justice system is so highly regarded abroad by foreign corporations, they come to this country and may in important litigation spend weeks or months using the access to justice that we provide paying only a proportion of the costs incurred.

As for other civil litigation, I well recognise the phrase, "access to justice", which the noble Lord, Lord Hunt, wants to incorporate by his amendment. However, the Lord Chief Justice, the noble and learned Lord, Lord Woolf, would be the first to say—he has said it many times—that access to justice does not necessarily mean the right to what I may call the Rolls Royce type of justice available in the High Court. However, he has many times referred to the importance of the access for the ordinary people of this country to the small claims system in the county courts, to the ombudsman schemes and to all the other alternative dispute resolution procedures. They are so important in practice for ordinary members of the public.

Let us realise that the Lord Chancellor's powers are hedged about throughout by the need to consult the heads of the judiciary, who are listed in the clause. So although the passion and accuracy of the comments of the noble Lord, Lord Hunt, about the need for adequate resources was important, we must distinguish between that and the question of fees provisions in the clause.

Lord Donaldson of Lymington: I welcome the fact that the heads of division no longer have to concur in fees orders but are only consulted. I frankly admit that I left my job more than 10 years ago. But, even then, I was embarrassed, and I dare say that my colleagues shared the feeling, at cavilling at proposals to increase fees on perfectly respectable grounds, when, after all, the provision of money and resources was the responsibility of the Government, not the judiciary. To that extent, I welcome the change that the Bill would make.

I echo the remarks of the noble Lord, Lord Goodhart, about splitting the commercial court from the rest of the civil justice system. I was a presiding judge in the commercial court for some years. It is fundamentally different from any other court. I believe that over 50 per cent of all cases tried in the commercial court involve at least one foreign party. There may be a case for the commercial court being under-remunerated by its users on the grounds that it is an export industry that we ought to subsidise—it is arguable. But, apart from that, I see no reason why the sort of cases dealt with in the commercial court should not command fees amounting to a full recovery at least. I would not mind if they went beyond that, and I do not think that it would worry the litigants.

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I had an interesting experience during the period when Lord Elwyn-Jones was the Lord Chancellor—forgive me for raising the matter, but it is illustrative. There was a shortage of court space for the commercial court, so I floated the idea that litigants might provide their own court at their own expense, and that the judge should go there and deal with the case accordingly. I got as far as getting agreement to those arrangements in one case. Solicitors hired the Reform Club—I do not know whether that was a good idea—for which the outlay was some 5,000, which was quite a lot of money in those days. When Lord Elwyn-Jones heard about the arrangement, he was appalled. He said that the arrangements involved private enterprise in a governmental service. He went further, ordering the solicitors to repay the Reform Club the 5,000 and to let the matter take its own course in the ordinary courts. I think that that was wholly absurd. But, regardless of whether it was absurd, it is interesting that the litigants were perfectly happy with the arrangements. They had the alternative option of going to arbitration, which would have cost them an arm and a leg more.

Let us by all means treat that as a special case. But it is overlooked that, in every society that I have ever heard of, justice came before education, health and almost anything else. I do not want to overstate the case because although it is factually true and the quality of justice may have been a bit dodgy, which it is in more punitive societies, the rationale was different, happily, from that which obtains at present. It was that, if the monarch, government or whoever did not provide a system for resolving disputes, the citizenry would take the matter into their own hands. That did not bother the monarchs in the least. What bothered them was that that would lead to the mutilation of possible soldiers for their forces. I accept that that rationale does not exist at present. It is a pity that it does not, from the point of view of providing better access to justice. But the provision of justice is still fundamental, even if the rationale has changed. I do not think that the Government recognise that.

The last point that I want to make is peripheral but, I think, important. The noble Baroness has been taunted for failing to respond to arguments that are plainly right. I agree: she does not respond to arguments that are plainly right. When she says, "I dare not do so", she is reflecting the fact that Ministers, particularly junior Ministers—I do not say that pejoratively, just to point out that they are not the Secretary of State or equivalent—are hedged in by the necessity to appear as advocates, rather than being able to express their own view. We ought to accept that the Minister is here as an advocate. There is no reason why she should not be told that the arguments that she puts forward as an advocate are nonsense; the only thing that we ought not to do is suggest that she does not realise that they are nonsense.

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9.45 p.m.

Lord Carlisle of Bucklow: The only point that I wanted to make follows from what the noble and learned Lord, Lord Donaldson of Lymington, has just said in his powerful speech. The noble Lord, Lord Borrie, limited the scope of his remarks to the commercial court. What the noble and learned Lord, Lord Donaldson of Lymington, said applied a great deal to the commercial court and the fact that full fees should be paid in that court to cover costs.

As I understand it—I will be corrected, if I am wrong—the amendment goes wider than the commercial court. The amendment says:

    "In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice".

Subsection (1) deals not only with the supreme court but with the county court and the magistrates' court. I would have thought that the argument made by my noble friend was unanswerable, certainly so far as concerns the county court. If, as the noble and learned Lord, Lord Donaldson of Lymington, said, we should preserve the right of access to justice in this country, the Lord Chancellor should take account, when deciding fees at that level, of the right of access. He should not impose fees at a level that refuses justice to people who might otherwise go to the county court.

Baroness Scotland of Asthal: I have found the debate stimulating and worthwhile. In particular, I thank the noble and learned Lord, Lord Donaldson of Lymington, for his understanding. The noble Lord, Lord Hunt of Wirral, made a powerful case for the importance of further resources. He also made a powerful case as to why we should listen to the quotations from the senior judiciary. I say to the noble Lord, in what are now famous terms, "You could say that. I couldn't possibly comment".

I say respectfully that, although we have ranged widely, we should come back to the amendment. The noble Lord, Lord Goodhart, and my noble friend Lord Borrie were, in their separate ways, right. The noble Lord, Lord Goodhart, made a point about negative resolution. I am pleased to be able to say at this early stage that his forecast of the Government's position on that matter is right. We will come to it later in the Bill, and we will, in principle, accept the point and table amendments in due course.

The amendment is not necessary. I say respectfully that the words spoken by my noble friend Lord Borrie were well said. He spoke about the distinction between needing full cost recovery in certain circumstances, where it is merited, and the need to bear in mind the needs of the litigant in other cases. The overarching concern of the Lord Chancellor is to ensure access to justice. There is a system of exemptions, remissions

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and guarantees for less well-off litigants relating to the payment of civil court fees.

When the noble and learned Lord the Lord Chancellor came to office, automatic exemption was confined in civil, non-family proceedings to recipients of income support. Indeed, the previous administration had attempted to remove even that in supreme court proceedings. In November 1997, the noble and learned Lord the Lord Chancellor extended automatic exemption to include income-based jobseekers allowance, family credit and disability working allowance. In September 1999, he updated this to include recipients of working families' tax credit and disabled person's tax credit at the same level. In March 2000, he made provision for refunds in particular limited circumstances where a litigant might be under pressure to pay a fee because time was running out to make a claim and where the court was currently unable to take account of those fees.

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