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In the Working Party's view, Proposal 66, properly apprehended, is not
discriminatory. A person who qualifies for legal aid and has an apparently meritorious
claim should undoubtedly be given the funding to pursue his claim as provided for by
statute. However, there can be no objection to the Director requiring the claim to be
pursued in the most cost-effective manner available in order to stretch legal aid
resources to enable a larger number of meritorious claimants to be assisted. Thus,
under the existing statutory provisions the Director has power to revoke a legal aid
certificate where the aided person "has required the proceedings to be conducted
unreasonably so as to incur an unjustifiable expense to the Director or has required
unreasonably that the proceedings be continued"
or where the Director "considers
that the aided person no longer has reasonable grounds for taking, defending or being
a party to the proceedings or, as the case may be, that it is unreasonable in the
particular circumstances for him to continue to receive legal aid."
Proposal 66 (as explained above) should be viewed as justifiable on the grounds
which underlie the aforesaid provisions, provided, of course, that the Administration
can be satisfied that the proposal would be likely to present an appropriate and a more
cost-effective solution in funding legal aid cases and saving public resources.
Proposal 66 should be adopted in principle. The Working Party understands that the
Administration may need to conduct its own pilot scheme and satisfy itself as to the
cost-effectiveness of the scheme before deciding on the way forward. If the proposal
as modified is subsequently implemented, detailed rules as to funding and otherwise
should be developed in consultation with the Judiciary, the legal profession,
institutions offering mediation services and other interested parties. The contents of
such rules would depend in part on the extent to which the court takes up powers to
direct mediation or to make adverse costs orders where mediation is unreasonably
rejected. The Legal Aid Department would also need to have officers trained to
identify cases likely to benefit from mediation.
Notes
Ibid, reg 8(3).
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