A heart-warming tale illustrates the importance of legal aid in achieving justice, says Geoffrey Bindman
One thing I have learned is the power of the sense of justice. I am not sure that it is an instinct hard-wired into every human brain, but most of us seem to have it. Some people will sacrifice almost everything to pursue justice through the courts. Cynical lawyers warn against undue confidence in the certainty of a just outcome, but the courage and determination of exceptional individuals sometimes proves them wrong.
One of those individuals, Jean, is now in her nineties. In 1959, while a mature student at Hull University, preparing for a career as a professional social worker, she became ill. She was recovering in hospital when a brief outburst of violent behaviour led to her being certified as “a person of unsound mind”.
This was a devastating blow. The violent episode was an isolated one and entirely out of character, but it put an end to her career before it had begun.
After her release she saw another doctor, who advised her that the incident was a natural consequence of her illness with no long-term effect and that the certification was a mistake and should be rescinded. He recommended her to a solicitor who helped her to apply for legal aid to seek a court order. Legal aid was refused.
Another solicitor was approached. Helped by a medical report which supported her case, he got legal aid to enable counsel’s opinion to be obtained. Junior counsel said leading counsel should be asked to advise. Leading counsel was equivocal. Jean changed her solicitors. Another leader was approached. Again there was a change of solicitors.
Eventually, a favourable opinion was given by the late John Platts-Mills QC, at the time still a junior. A writ was issued in the High Court but everyone had overlooked that the Mental Health Act in force required leave from a judge before proceedings could be commenced. The application for leave should have been made within one year of the certification. More than five years had gone by. The application was made but it was too late. The Court of Appeal refused to interfere.
By this time Jean was without legal aid. Her lawyers had failed to explain what had gone wrong and why she could not pursue her claim. The papers in the case were voluminous. She had lost confidence in the legal profession, which had let her down badly, but not in the ability of the legal system to deliver justice.
She continued to complain vigorously about what had happened and tried to appeal to the House of Lords. When she could not find solicitors to represent her, she carried on alone.
Most of us are familiar with the desperate, obsessed and usually misguided litigants in person who haunt the corridors in the Strand with bulging bags of documents. For a time Jean must have resembled one of them. Lord Denning in the Court of Appeal was well-known for his sympathy and kindliness towards litigants in person, but he told her she was “barking up the wrong tree”.
A succession of solicitors and barristers failed to help her or gave her wrong advice. Her MP helped her to get legal aid for a QC to review the whole situation. Her case under the Mental Health Act had by this time been statute-barred for 10 years, but the accumulated failures of her many lawyers, several of them household names, had left her without redress.
A famous City firm was persuaded to pursue a negligence claim for her against some of those lawyers. Twenty years had now passed since she had that unhappy spell in a Hull hospital, when new disaster struck.
The famous firm failed to comply with a court order for disclosure of some documents and the action was struck out. Once again, Jean had been let down by her lawyers.
Until then, in the early 1980s, I had never heard of Jean. A Law Society official telephoned me. Could I help in a sticky situation? The story was unfolded. The city firm had asked the society to find a new solicitor for its client. There was now a conflict of interest and the firm could no longer act. She needed independent advice. At the time the society still managed the legal aid scheme on behalf of the government. If I agreed to help out—it was delicately implied—legal aid would be no problem.
There are few things less attractive to the litigator than taking over a complex case from another firm, especially a legal aid case. Here everything had gone wrong—and it had been going wrong for over 20 years. Common sense told me to have nothing to do with it but I was intrigued, and sorry for the client. Getting to grips with the history was a mammoth task. The papers filled a small room. Jean herself proved a marvellous asset. She had complete mastery of the detail and a firm grasp of the legal issues.
I instructed John Macdonald QC. We decided to go to the Court of Appeal to try to revive the struck out action. Lord Denning greeted us warmly but felt compelled to turn us down.
There was no alternative to yet another negligence action against the City firm. Its insurers were far from willing to concede, even though the case seemed open and shut.
However, in 1982, a settlement was endorsed by the court acknowledging, as was evident to all who knew her, that her “unsoundness of mind” was a myth and a fiction. Justice—belated and as always imperfect—was done. And the legal aid fund was repaid.
Jean was about to confirm her mental capacity and her resilience in an unexpected way. A year after the litigation ended, at the age of 69, she passed the Bar exams and was called to the Bar. It was a bit late to embark on a new career. She completed a pupillage and did some pro bono advocacy but that was enough.
This is a story with a happy ending. With all her guts and ability it could not have been achieved without legal aid. Those who are prepared to sacrifice legal aid to save money do not understand that justice is beyond price.
