![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
|
THE FUTURE OF BAILII DEPENDS ON USERS LIKE YOU
If you want to be able to use BAILII in the future, please consider making a donation to celebrate BAILII's 25 years of providing free access to law.
Your donation, no matter the size, will help BAILII maintain the legal databases that you and many other users rely on. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
| ||||||||||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Director of Legal Aid Casework & Anor v IS [2016] EWCA Civ 464 (20 May 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/464.html Cite as: [2016] WLR(D) 277, [2016] 2 FLR 392, [2016] WLR 4733, [2016] 3 Costs LR 569, [2016] Fam Law 959, [2016] EWCA Civ 464, [2016] 1 WLR 4733 |
||||||||||
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2016] WLR(D) 277]
[Buy ICLR report: [2016] 1 WLR 4733]
[Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT – CO/17381/2013
MR JUSTICE COLLINS
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD
JUSTICE LAWS
LORD
JUSTICE BRIGGS
and
LORD
JUSTICE BURNETT
____________________
(1) The Director of Legal Aid Casework(2) The Lord Chancellor | Appellants |
|
| and |
||
| IS (a protected party, by his litigation friend the Official Solicitor) |
Respondent |
____________________
(Transcript of the Handed Down Judgment of
WordWave International Limited
Trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr R Hermer QC and Mr C Buttler (instructed by The Public Law Project) for the The Respondent
Hearing dates: 21 & 22 March 2016
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
LAWS LJ:
INTRODUCTION
Director
of
Legal
Aid
Casework
and the
Lord
Chancellor,
with permission granted by the judge below, against the decision of Collins J given in the Administrative Court on 15 July 2015 ([2015] EWHC Admin 1965). The case concerns the
legality
of the Exceptional Case Funding (ECF) scheme for the administration of
legal
aid
pursuant to s.10 of the
Legal
Aid,
Sentencing and Punishment of Offenders Act 2012 (LASPO), and related issues. The claimant is a protected party acting by the Official Solicitor. Though he is the respondent to the appeal, it will make for clarity if I refer to him as the claimant. Collins J allowed his application for judicial review and granted declarations that (1) the ECF Scheme as operated is unlawful as giving rise "to an unacceptable risk that an individual will not be able to obtain
legal
aid
where failure to provide it would be a breach of that individual's rights under the European Convention of Human Rights (to the extent applied by the Human Rights Act 1998) or under directly enforceable EU law", (2) the Civil
Legal
Aid
(Merits Criteria) Regulations 2013 (the Merits Regulations) and (3) the Exceptional Case Funding Guidance (Non-Inquests) (the Guidance) are unlawful in the respects and to the extent set out in the judgment. The appellants now appeal against these declarations.
THE LEGISLATION
LASPO
legal
aid
with a
view
to making savings in the cost to public funds". The categories of work for which in the ordinary way civil
legal
aid
was to be available were significantly restricted. The basic provision is given by s.9(1):
"Civillegal
services are to be available to an individual under this Part if –
(a) they are civillegal
services described in Part 1 of Schedule 1, and
(b) theDirector
has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
Director"
(the first appellant) is the
director
of the
Legal
Aid
Agency (the LAA). The
Director
is designated by the
Lord
Chancellor
pursuant to s.4(1). S.4(3) – (5) provide:
"(3) TheDirector
must—
(a) comply with directions given by theLord
![]()
Chancellor
about the carrying out of the
Director's
functions under this Part, and
(b) have regard to guidance given by theLord
![]()
Chancellor
about the carrying out of those functions.
(4) But theLord
![]()
Chancellor—
(a) must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and
(b) must ensure that theDirector
acts independently of the
Lord
![]()
Chancellor
when applying a direction or guidance under subsection (3) in relation to an individual case.
(5) TheLord
![]()
Chancellor
must publish any directions and guidance given under this section."
varied
by the
Lord
Chancellor
under s.9(2). It describes those categories of case for which civil
legal
aid
may ordinarily be provided. Such services are referred to, in the patois of this area of the law, as being "in scope". Civil
legal
aid
for other services ("out of scope") can only be granted through the ECF mechanism given by s.10, which is the genesis of the dispute in this case. S.10 provides so far as relevant:
"(1) Civillegal
services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2)… is satisfied.
(2) This subsection is satisfied when theDirector
-
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision oflegal
services that are enforceable EU rights, or
(b) that it is appropriate to do so, in particular circumstances of the case, having regard to any risk that failure to do so would be such a breach".
legal
aid
in scope and out of scope respectively. S.11(1) requires the
Director
to determine whether an applicant satisfies the means test provided for by s.21 and regulations made under that section, and also a merits test, constituted by "criteria set out in regulations made under this paragraph" (s.11(1)(b)). The means and merits tests apply both to in scope and out of scope provision. S.11 continues:
"(2) In setting the criteria, theLord
![]()
Chancellor—
(a) must consider the circumstances in which it is appropriate to make civillegal
services available under this Part, and
(b) must, in particular, consider the extent to which the criteria ought to reflect the factors in subsection (3).
(3) Those factors are—
(a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
(b) the availability of resources to provide the services,
(c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civillegal
services under this Part,
(d) the importance for the individual of the matters in relation to which the services would be provided,
(e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
(f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
(g) if the services are sought by the individual in relation to a dispute, the individual's prospects of success in the dispute,
(h) the conduct of the individual in connection with services made available under this Part or an application for such services,
(i) the conduct of the individual in connection with anylegal
proceedings or other proceedings for resolving disputes about
legal
rights or duties, and
(j) the public interest.
(4) In setting the criteria, theLord
![]()
Chancellor
must seek to secure that, in cases in which more than one form of civil
legal
service could be provided for an individual, the individual qualifies under this Part for the form of service which in all the circumstances is the most appropriate having regard to the criteria.
(5) The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate thanlegal
proceedings.
(6) Regulations under subsection (1)(b) may provide that no criteria apply in relation to a prescribed description of individual or services."
The Merits Regulations
Director
to assess, in accordance with the prospects of success test set out in Regulation 5, the likelihood that an individual will obtain a successful outcome at a trial or other final hearing. Regulation 5:
"(1) Where theDirector
assesses, for the purposes of these Regulations, the prospects of success of a matter to which an application for civil
legal
services relates, the
Director
must classify the prospects of that matter as follows—
(a) 'very
good', which means an 80% or more chance of obtaining a successful outcome;
(b) 'good', which means a 60% or more chance, but less than an 80% chance, of obtaining a successful outcome;
(c) 'moderate', which means a 50% or more chance, but less than a 60% chance, of obtaining a successful outcome;
(d) 'borderline', which means that the case is not 'unclear' but that it is not possible, by reason of disputed law, fact or expert evidence, to—
(i) decide that the chance of obtaining a successful outcome is 50% or more; or
(ii) classify the prospects as poor;
(e) 'poor', which means the individual is unlikely to obtain a successful outcome; or
(f) 'unclear', which has the meaning given in paragraph (2).
(2) 'Unclear' means theDirector
cannot put the case into any of the categories in paragraph (1)(a) to (e) because, in all the circumstances of the case, there are identifiable investigations which could be carried out, after which it should be possible for the
Director
to make a reliable estimate of the prospects of success."
legal
help", which is negatively defined by Regulation 13 as meaning (I summarise)
legal
services outside court proceedings,
legal
aid
will only be available if "it is reasonable for the individual to be provided with
legal
help…" and "there is likely to be sufficient benefit to the individual…": Regulation 32. In relation to mental health proceedings before the First-tier Tribunal, Regulation 51(2) provides that "[t]he
Director
must be satisfied that it would be reasonable in all the circumstances of the case for the individual to be provided with full representation". For a public law children case Regulation 66(2) provides:
"An individual may qualify for full representation in a public law children case only if theDirector
is satisfied that—
(a) it is reasonable for full representation to be provided, having regard to the importance of the case to the individual; and
(b) if the individual is making or supporting an appeal or application, the prospects of success of that appeal or application arevery
good, good, moderate or borderline."
The Guidance
Lord
Chancellor's
Guidance issued under LASPO s.4(3)(b) is not of course legislation, but it is convenient to set out here the only two paragraphs which are in contention. Paragraph 8 states:
"The purpose of Section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of alegal
![]()
aid
scheme that has refocused limited resources on the highest priority cases.
Caseworkers
should approach Section 10(3)(b) with this firmly in mind. It would not usually be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. The greater the risk of a breach, the more likely it is that it will be appropriate to make a determination. However, the seriousness of the risk is only one of the factors that may be taken into account in deciding whether it is appropriate to make a determination. Regard should be had to all the circumstances of the case."
Paragraph 39:
"Where an individual makes an application forLegal
Help alone,
caseworkers
should consider particularly carefully whether the Section 10(3) criteria are met. It will not be sufficient that such assistance is merely helpful for the presentation of the case. The failure to provide
Legal
Help will in itself not usually amount to a breach of ECHR or enforceable EU rights to
legal
![]()
aid.
In particular, where the source of the obligation to provide
legal
![]()
aid
is Article 6(1), it should be recalled that the obligation can only arise where there is a 'determination of an individuals civil rights and obligations' and
caseworkers
should consider whether an application for
Legal
Help alone does in fact relate to such a determination".
GUDANAVICIENE
v
LORD
CHANCELLOR
[2015] 1 WLR 2247 ("G")
Director
to refuse them
legal
aid
under the ECF scheme. The claimant in the present case was one of the claimants there, but his case was not pursued in this court. The principal focus of the challenge was the
Lord
Chancellor's
Guidance as it then stood – its compatibility with ECHR Article 6, and with Article 8
vis-à-vis
immigration cases. Collins J upheld the challenge in a judgment delivered in June 2014. This court dismissed the
Lord
Chancellor's
appeal in December 2014.
Lord
Dyson MR described the conclusions of the court as follows:
"181. For the reasons we have given at paras 41 to 59 above in relation to ground 2, the Guidance is not compatible with article 6(1) of the Convention and article 47 of the Charter. It impermissibly sends a clear signal tocaseworkers
and the
Director
that the refusal of
legal
![]()
aid
will amount to a breach only in rare and extreme cases. For the reasons we have given at paras 64 to 77 above in relation to ground 3, the Guidance is not compatible with article 8 of the Convention in immigration cases. As is now conceded by the
Lord
![]()
Chancellor,
para 60 of the Guidance wrongly states that there is nothing in the current case law that would put the UK under a
legal
obligation to provide
legal
![]()
aid
in immigration proceedings in order to meet its procedural obligations under article 8."
At paragraph 45 the court held that certain passages in the then Guidance "misstate the effect of the ECtHR jurisprudence" and "send a clear signal to the
caseworkers
and the
Director
that the refusal of
legal
aid
will amount to a breach of article 6(1) only in rare and extreme cases. In our judgment, there are no statements in the case-law which support this signal". After making further reference to some of the Strasbourg cases, the Master of the Rolls continued at paragraph 56:
"It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantivelegal
issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of
legal
services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil
legal
![]()
aid
in most or even many cases. It all depends on the circumstances. It should be borne in mind that, although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The outcomes in X
v
UK, Munro and McVicar show that it is not a requirement of article 6(1) that
legal
services be provided in all but the most straightforward of cases. On the other hand, the outcomes in Airey, P,C and S, Steel and Morris and AK and L do not show that
legal
services are required only in such extreme cases as these. In short, we do not accept the submission of Mr Chamberlain that these decisions justify the passages in the Guidance which we have criticised at paras 44-45 above."
viable
if the
Lord
Chancellor's
Guidance remained unlawful). The revision was published just before the first instance hearing in the present case. Paragraphs 8 and 39 are as they appear in the post-G Guidance. But for the purposes of this appeal G is, I think, significant for a different reason. It was a case in which the claims were by individual prospective litigants: at paragraph 184 of the judgment the individual cases were considered and decided. In this appeal the judicial review is generic: the assault is upon the ECF scheme as a whole. It therefore requires proof of a systematic failure; and this is not, certainly not necessarily, to be equated with proof of a series of individual failures.
GROUND 1A: ASSAULT ON THE JUDGE'S APPROACH
The Test
legality
of schemes of this kind in terms of inherent unfairness. The test is critical to Ground 1B as well as Ground 1A; but it is convenient to address it here. In Tabbakh [2014] 1 WLR 4620 Richards LJ (with whom Aikens and Patten LJJ agreed) said this:
"35. In my judgment, the question to be asked in the present context is a more straightforward one, namely whether the system established by the guidance in the policy documentation is inherently unfair by reason of a failure to provide the offender with a fair opportunity to make meaningful representations about proposed licence conditions. If it is, then the guidance itself may be found to be unlawful; but if it is not, the correct target of challenge is not the guidance but any individual decisions alleged to have been made in breach of the requirements of procedural fairness.
36. The key authority is the decision of the Court of Appeal in R (RefugeeLegal
Centre)
v
Secretary of State for the Home Department [2004] EWCA Civ 1481, [2005] 1 WLR 2219. That case concerned a challenge to the decision to establish a fast track pilot scheme for the adjudication of asylum applications at Harmondsworth Removal Centre, on the ground that it was inherently unfair and unlawful because it compressed the decision-making process into three days. The Home Office filed evidence that claims which turned out to be particularly complex were removed from the scheme and that
caseworkers
were encouraged to adopt as flexible an approach as possible without compromising the integrity of the process. Giving the judgment of the court, Sedley LJ rejected a submission by [counsel for the claimant] that the question was 'whether the system was capable of operating fairly', pointing out that in a straightforward case the system was perfectly capable of operating fairly. He continued:
'6… A more appropriate question, in ourview,
is the one posed by [counsel for the Home Office]: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham's alternative approach of seeking to construct a 'typical' case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry… at unacceptable risk of being processed unfairly. This, therefore, is the question we propose to address.
7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has beenviolated.
The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects…'"
"27. I would accept Mr Eadie's summary of the general principles that can be derived from these authorities: (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v)
the core question is whether the system has the capacity to react appropriately to ensure fairness…; and (
vi)
whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts…"
aid
the seminal authority of Padfield
v
Minister of Agriculture, Fisheries and Food [1968] AC 997: "[i]t has long been a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act which conferred it". But the reference is, I think, apt to mislead. The appellants have not acted to promote an end or goal which is at odds with the statutory purpose (that would be the classic Padfield case). The reality of the claimant's argument is rather that the scheme does not measure up to s.10; and in that sense frustrates it. Upon that issue, Padfield carries the case no further. The need to judge the "irreducible minimum of fairness" against the background of LASPO s.10 is not a mandate of that authority; it is required by the ordinary need to have regard to context in the application of any
legal
rule.
legality.
Even so the dividing line between multiple instances of unfairness and an inherent failure in the system is in considerable measure a matter of degree, and therefore of judgment. As the Master of the Rolls said at paragraph 29 of Detention Action, "the concepts of fairness and justice are not susceptible to hard-edged definition". The strength of the evidence supporting a challenge to the system as a whole will obviously be crucial. But as I have said, proof of a systematic failure is not to be equated with proof of a series of individual failures. There is an obvious but important difference between a scheme or system which is inherently bad and unlawful on that account, and one which is being badly operated. The difference is a real one even where individual failures may arise, or may be more numerous, because the scheme is difficult to operate.
The Judge's Criticisms of the Scheme: Summary
very
helpful summary of his criticisms of the scheme set out in the appellants' skeleton argument at paragraph 17 (the numbers refer to paragraphs in the judgment):
"(i) The complexity of the ECF application form [53, 56, 80 and 105];
(ii) The level of detail that applicants for ECF were required to provide [54, 65, 80 and 105];
(iii) The requirement for an applicant to provide details of his means before his ECF application was considered [63];
(iv) The absence of a formal emergency procedure for considering ECF applications in urgent cases [77];
(v)
The manner in which the
Legal
![]()
Aid
Agency approached the merits test, which the learned judge found involved consideration of the merits on the assumption that the applicant would remain unrepresented, and also found to amount to an unacceptable pre-judgment of the decision that the court would reach in the litigation for which funding was sought [96 & 106];
(vi)
The absence of sufficient guarantees within the ECF system to protect the applicant from arbitrariness and, in particular, the absence of a right of appeal to a judicial body against refusal of ECF in circumstances in which the result of refusal would be an infringement of the
very
essence of the right of access to a court [92-93 & 107];
(vii)
The absence from the scheme of arrangements to pay providers for doing the preliminary investigative work (which may include obtaining expert evidence) which may be needed to determine whether a client has a proper claim for ECF [57, 59 and 105]."
I should note that the judge also (paragraphs 35 – 40) drew attention to particular difficulties that had arisen in family cases.
"79… I am entirely satisfied that the scheme is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS's case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal.
80. The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of 20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay forlegal
assistance are suffering in a way that Parliament cannot have intended."
It will be seen that the judge's formulation at paragraph 79 ("present his or her case effectively and without obvious unfairness") is taken directly from the Master of the Rolls' judgment in G at paragraph 56. G was, as I have said, a challenge to individual refusals of
legal
aid
under the ECF scheme, not an assault upon the scheme as a whole (although the court found generic faults in the then Guidance). I should also note the judge's observation at paragraph 105, that "[c]onsideration must be given to provision of
Legal
Help to enable providers to do work to see whether a client has a case which should be granted
legal
assistance because it qualifies within s.10 of the Act": Miss McGahey QC, who argued Ground 1 for the appellants, submits (skeleton paragraph 20) that Collins J's admonition to "consider" the provision of
Legal
Help is inapt as a finding of
legal
fault, but is by contrast a good example of the focus of his judgment upon perceived individual deficiencies rather than the application of the test of inherent unfairness to the scheme as a whole.
Conclusion on Ground 1A
voluminous
evidence. But that is not the thrust of the appellants' submission. There is no substantial dispute as to primary fact; the argument on both sides is in truth directed towards the inferences to be drawn from the facts for the purpose of applying the test of inherent unfairness to the scheme. On Ground 1A, Miss McGahey submits as I have said that the judge nowhere explains how the raft of criticisms he levels at the scheme combine to demonstrate that the test of inherent unfairness is made out.
Legal
Centre. He was by no means obliged to do so in terms; but it should have been apparent from his judgment that the correct test was applied. I do not think the judgment makes that plain. I note in particular his criticisms of the ECF form (and the merits form) at paragraphs 53 ff. I describe the forms and the criticisms below in addressing Ground 1B. The points the judge makes are in essence a series of individual exhortations to improvement. Taking these together with paragraphs 79, 80 and 105 which I have set out, I consider that Collins J's approach to the case does not clearly gather his strictures into a reasoned conclusion to the effect that the scheme fails to meet the test. To that extent I think Ground 1A is well-founded. But it remains for this court to decide whether or not the test is in truth met, and that, of course, engages Ground 1B, to which I now turn.
GROUND 1B: THE
LEGALITY
OF THE SCHEME
legal
aid
for those who ought by force of LASPO s.10 to be assisted, that the scheme should be condemned as inherently unfair. Mr Hermer submitted that the extensive evidence, in three broad categories, requires such a condemnation. These categories consist in evidence that (1) the scheme is inaccessible to lay persons; (2) potential claimants are substantially unable to obtain representation; and (3) these difficulties are magnified for persons without litigation capacity. The categories are distillations of Points 2 – 4 set out in Mr Hermer's skeleton argument at first instance (paragraphs 32 – 55), where they are gone into at some length. Mr Hermer's skeleton in this court specifically cross-refers (paragraph 9.1) to his skeleton below. The starting-point for all three categories is the terms of the ECF form.
The ECF Form
legal
representatives rather than lay applicants. Thus it seeks "Your client's details" and "Provider details" – Solicitors Roll number". It asks "Does your office have a contract that allows you to do
Legal
Aid
work in this Category of law…?" Collins J proceeded to describe the form as follows:
"48. The ECF application form requires the giving of information under five headings, A to E. There are four separate sub-headings in A under the heading 'Generic Information'. The first asks 'How important are the issues at stake for the client?', the second asks 'How complex are the proceedings, the area of law or the evidence in question?'. It continues:-
'You should discuss factual, procedural andlegal
complexity. Please specify the court, tribunal or other forum in which the case will be heard (e.g. First Tier Tribunal, County Court, High Court).'?
The third asks 'how capable is the client of presenting their case effectively?' It continues:-?
'Please consider the client's education or relevant skills/experience, any relevant disabilities, the client's capacity, including whether a litigation friend may be able to conduct proceedings on the client's behalf.'?
The fourth requires that any additional information that is relevant to the question of whether ECF should be made available is specified.
49. Section B is headed 'Legal
![]()
Aid
under Article 6 ECHR' and contains the question 'Does the case involve a determination of the applicant's civil rights and obligations?'. If the answer is yes, reasons should be given providing references to any supporting case law if appropriate. The second question is whether the failure to provide
legal
![]()
aid
would be a breach of the client's right under Article 6(1) ECHR. If the answer is yes, the same requirement to give reasons and refer to supporting case law is stated.
50. Section C is headed 'Other ECHR Rights'. It asks whether the failure to grant ECF would breach any other ECHR right, and, if so, reasons and, if appropriate, supporting case law should be provided. Section D asks the same question and requires the same information if it is said that the failure to grant ECF would breach an enforceable EU right tolegal
services, for example under Article 47 of the Charter of Fundamental Rights.
51. Section E asks for the extent of the services to be provided. This requires the level of services to be specified under the three headings: licensed work, special case work services and controlled work services. These are defined in the Procedure Regulations as I have already indicated. Reasons must be given why the services requested are the minimum required to meet the obligations under ECHR or EU law.
52. Finally, there is a section which deals with urgent case details, limited to licensed work or special case work services. It asks for details of any imminent dates for an injunction or other emergency proceedings, for a hearing or for the expiry of a limitation period. The questions posed are first whether a delay would 'cause risk to the life, liberty or physical safety of the client or his or her family or the roof over their heads?'. The second question is whether a delay would 'cause a significant miscarriage of justice or unreasonable hardship to the client, or irretrievable problems in handling the case?'. If either question is given a positive answer reasons must be given."
There are two further forms, seeking details of the applicant's merits and means. These apply both to in scope and out of scope cases. The merits form is not needed when, for example, an ECF application is for
Legal
Help.
The Judge's Criticisms of the ECF Form
legal
assistance is needed in order to satisfy that test" (56); access to
Legal
Help should be addressed in circumstances where the solicitor perceives that work is required to determine whether the client in fact needs funding: "[c]onsideration must… be given to this since the evidence is that solicitors are for good reason not prepared to engage in work for which payment is not likely to be received" (57). This last criticism is described by Collins J as a "fundamental defect in the form and the scheme". Alongside his criticisms of the form, at paragraph 65 the judge referred to the "LAA's insistence on a high level of detail. Examples are given of failure without corroborative evidence to accept particular assertions, for example, in relation to capacity of applicants said to suffer from mental problems".
view
would amount to a satisfactory procedure for dealing with emergency applications: paragraphs 77 – 78:
"For in-scope applications, those which are urgent are to be dealt with in 48 hours and full merits and means forms will be required only if the emergency certificate is granted. I have already noted that regulation 66(3) of the Procedure Regulations disapplies this urgent case procedure for ECF applications. It is difficult to understand the reason for this since the need for urgent assistance will be the same whether or not the case is within scope." (paragraph 77)
And at paragraph 93:
"The right to seek judicial review (which is in scope) is not an entirely satisfactory remedy since it is only possible to quash a refusal if an error of law is established. Essentially, in most cases it would be necessary to show that the decision was irrational in Wednesbury terms. In myview,
the system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the
very
essence of the right of access to a court."
The Claimant's First Point: Lay Applicants
very
few lay applicants could complete the form accurately without professional assistance. As I understand it only one applicant acting in person has carried through the process without such assistance until a late stage, and obtained a grant of ECF. Collins J gives an account of the case:
"60. It is instructive to follow the evidence of an individual who has tried to apply in person. The successful applicant is known as JLE. She describes her experience of trying to getlegal
assistance as a total nightmare. I need not go into great detail. Suffice to say that she had had a most unfortunate history of abuse when a child and suffered from post natal depression. She was convicted of administering a toxic substance to her
very
young daughter. As a result of this and her then mental condition, care proceedings were instigated by the local authority in respect of her daughter and her as yet unborn son. It must have been obvious that her desire to maintain contact with her children engaged her Article 8 rights and involved a difficult case which she would be unable to deal with if unrepresented. Her application was refused in a
very
lengthy but seriously flawed response. She wished to apply for a review. She says (and this is not disputed) that the person to whom she spoke tried to dissuade her on the basis that the matter was not complex. She was advised to go to different solicitors (she had approached her former solicitors) or to a CAB and seek pro-bono help. She had to attend a hearing, which fortunately turned out not to be of great importance, unrepresented, an experience she found incredibly stressful. This was because of delays by the LAA. Eventually, ECF was provisionally granted subject to full means information being supplied.
61. JLE concludes:-
?'In my experience solicitors in my area are not (at least in the absence of payment) willing to help people to make applications for [ECF]. Further, the LAA made no concessions at all for the fact that I was unrepresented. I was actively requested to fill in lengthy and complicated forms, refused funding forlegal
reasons I could not understand, discouraged from appealing and ultimately denied the positive decision to which I was entitled in time to enable me to be represented.'"
Legal
Aid
Practitioners Group on 4 March 2013… but has never been provided". Further details of the difficulties which have faced individual lay applicants are summarised in the Scott Schedule at pp. 7 – 11. It is said that "[t]he LAA has provided unhelpful responses to direct applicants" (p. 8), and a number of examples are given. Some, certainly, make sorry reading. Thus:
"Application tab 1: the unsuccessful applicant was told to contact a solicitor for advice.
Application tab 2: the application was refused because the ECF form was unsigned (when that is not supposed to be a precondition for a direct client application).
Application tab 6: the unsuccessful applicant was told that a full determination could only be made by lodging a full set of completed forms signed by a solicitor.
Application tab 10: the application was refused for failure to complete form MEANS1 (when that is not supposed to be a precondition for a direct client application).
Application tab 25: the LAA refused to reconsider the matter unless fully completed CIVAPP1, CIVECF1, CIVMEANS forms and supporting documentation were provided."
very
trenchant observations from the judge in the proceedings, that "if ever there were a case that qualified [for ECF] this is it". The appellants are noted (p. 8) as stating: "[t]his case pre-dated [G]… The Defendants accept that it would have been better for the decision-maker to seek further information on the contact application before refusing the ECF application." That the case pre-dated G exemplifies a more general difficulty: it is not clear how far the same is true of other instances, adduced as anecdotal evidence by the claimant.
The Claimant's Second Point: Difficulties of Representation
very
hard to find. There is a great deal of material on this part of the case gathered in the Scott Schedule (pp. 11 – 21) under the heading "Solicitors are generally unwilling to make applications for ECF where there is no existing relationship with the client". A key feature is that, as the ECF form makes clear, no payment is made for unsuccessful applications or for any work done on an application which proves unsuccessful. Between pp. 13 and 18 the Scott Schedule lists some 27 instances of individual providers with extracts from evidence given by them showing, on the claimant's case, a pervasive reluctance or inability to undertake ECF applications. Some offer much more detail than others. One of the more forthright examples is this extract from the evidence of Mr Hundt of Messrs. Deighton Pierce Glynn (Scott Schedule p. 17):
"We already carry out a lot of work pro bono, at low cost, and at non-commercial rates. We have done so for many years and will continue to do so. Our commitment to meaningful access to justice for our clients demands it. However, balancing this commitment with the financial realities of publicly funded work to maintain theviability
of the practice is a constant challenge, and one that is becoming increasingly difficult with further restrictions on the scope of
legal
![]()
aid
and its terms. There simply isn't scope within this already fragile model to add into the mix a source of funding which is marred by a disproportionately large amount of initial unpaid administrative work, significant delays, a disproportionately high refusal rate and the absence of a sufficiently certain set of funding criteria to enable informed decision to be made on case selection. And which, even at the end of this, even if successful, pays for our work at rates which do not even cover our overheads."
The appellants' somewhat terse comment on Mr Hundt's evidence is set out on p. 12 of the Scott Schedule:
"Mr Hundt, while criticising the ECF scheme, acknowledges that he has limited experience of it. He has provided too few details of the case in which he was involved for the Defendants to be able to identify it."
"It is economically irrational forlegal
![]()
aid
firms to work on ECF applications where (i) unsuccessful applications are unpaid, (ii) 87% of applications are unsuccessful, (iii) it takes many hours to make an application, which would otherwise have been spent on chargeable work, (iv) successful applications are paid at ordinary
legal
![]()
aid
rates and (
v)
![]()
legal
![]()
aid
firms are struggling to survive. In those circumstances, it would be surprising if
legal
![]()
aid
firms were willing to make applications. The evidence before the Judge from
legal
![]()
aid
providers was that they were unwilling to act in an economically irrational way and would not make ECF applications for new clients. The
volume
and quality of that evidence was unprecedented in judicial review proceedings; it came from firms responsible for making 20% of all ECF applications and 44% of all successful applications ever made."
Points (iv) and (
v)
in this summary reflect the impact of recent
legal
aid
reforms which also receive attention in the claimant's observations in the Scott Schedule at pp. 11 – 12:
"Thelegal
![]()
aid
reforms have reduced the supply of
legal
![]()
aid
services:
- The number of civil and familylegal
![]()
aid
providers fell by almost a quarter in 2013-14 compared to 2012-13 (Laspo One Year On, Bar Council report, para 177…).
- There are 14 local authority areas in which no face-to-face civillegal
![]()
aid
work was started and 39 in which fewer than 49 pieces of
legal
work per 100,000 people was started in 2013-14 (National Audit Office, Implementing reforms to civil
legal
![]()
aid,
20 November 2014…). The Law Society has warned that 'the future sustainability of
legal
![]()
aid
practice is in significant doubt' (Justice Committee, Report on the Impact of Changes to Civil
Legal
![]()
Aid,
5 March 2015, para 77…).
Firms that continue to dolegally
![]()
aided
work operate on much reduced profit margins. Fees paid for
legal
![]()
aid
have not been increased for inflation since 1998-99, which equates to a real-terms reduction of 34% (Public Accounts Committee, Report on Implementing Reforms to
Legal
![]()
Aid,
19 January 2015, para 19…). On top of that, the Ministry of Justice cut fees by 10% from 3 October 2011 (The Community
Legal
Service (Funding) (Amendment No.2) Order 2011). This means that
legal
![]()
aid
providers have little capacity to do unpaid work."
The relevance of the
legal
aid
reforms, on Mr Hermer's case, is not merely the bare fact that solicitors who do
legal
aid
work operate on much reduced profit margins. It is also that unsuccessful ECF applications may have an impact on key performance indicators, and therefore the security of a firm's
legal
aid
contract. The judge made this point at paragraph 47. An agreed table of non-inquest ECF applications and grants (page 394 of the Core Bundle) shows that the overall percentage of applications between April 2013 and March 2015 which resulted in ECF grants was no more than 5.4%.
legal
aid
providers have little capacity to do unpaid work" – states an inference, but I do not understand it to be substantially disputed as a matter of fact. The appellants' observations on the claimant's comments about the
legal
aid
reforms are also to be found at pp. 11 – 12 of the Scott Schedule:
"It is the LAA's experience that solicitors/providers are willing to make full ECF applications on behalf of their clients, across different areas of law…
By way of example, Mr Furner, on whose evidence the Claimant relies, says that, while he is disillusioned with the ECF process and expects to have to litigate to achieve ECF (his firm having been involved in only 8 applications) he will still apply for ECF in an appropriate case…
Legal
services providers routinely make judgments about degrees of risk, and accept or reject business accordingly. It is not unreasonable to expect them to do so in respect of the relatively small cost of making ECF applications, and to manage time and disbursements accordingly."
One of the difficulties in the case is to decide what the court should make of judgments of the kind expressed in that last paragraph, involving as they do perceptions and understandings which are to some extent subjective in nature. Mr Hermer would say that the proof of the pudding is in the eating, and would point to the extensive evidence of widespread reluctance on the part of providers to undertake this kind of work.
caseworkers
up to one full day to determine the merits of an application for ECF.
The Claimant's Third Point: the Difficulties are Magnified for Applicants without Litigation Capacity
"It is said that evidence is not now requested and cases in which that request was made occurred in the early days and are not to be repeated. Nevertheless, there have been instances when information perhaps in the form of existing reports has been requested."
"73. The OS has particular concerns for patients, namely persons lacking mental capacity, and children who cannot engage in litigation without a litigation friend. He is a litigation friend of last resort in the sense that he will act only where no other litigation friend can be found. He will not, save in rare cases, himself conduct litigation and needs to have external funding… It must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned. The response given is that a litigation friend can conduct the litigation and can apply for ECF. Equally, it is said that a litigation friend can conduct a case and so can be expected to be treated in the same way as would a litigant who had capacity. The evidence from Mr Bryant, the head of ECF determinations in the LAA, is that the ECF team does not expect litigation friends to conduct the litigation as advocates, but they step into the protected person's shoes. The same point is made by the policy manager in the Ministry of Justice'slegal
![]()
aid
policy team, Mr Holmes, in his statement.
74. There is a powerful disincentive for a litigation friend to act since he or she undertakes not only to pay the protected person's costs but any costs that the court may order to be paid by the protected person. While the litigation friend will expect to recover from the protected person such costs, that is unlikely to be realistic when the protected person lacks means and so could be financially eligible forlegal
![]()
aid.
Equally, a litigation friend is under a duty to act always in the protected person's best interests and those may not be in accordance with the protected person's
views,
albeit those
views
must always be put to the court. Thus in many cases it would be inappropriate for a family member (for example a parent of a child) to act as a litigation friend since there may be a need for objectivity which could not be met. Further, McKenzie friends cannot be used. It follows that in many cases involving impecunious children or adults who lack capacity there will be real difficulties in finding a litigation friend prepared to act having regard in particular to liability for costs. Thus the OS may have to act if approached. He will not normally be able to act for an impecunious individual, unless, absent a CFA or a costs undertaking from the opposing party, there is
legal
![]()
aid."
The Appellants' Case on Ground 1B: the Website and Helpline
caseworkers
or lawyers employed by the LAA during normal working hours. The website includes links to provider information packs (for both inquest and non-inquest cases). There are two sections respectively headed (in the June 2014
version)
"Applications from a
legal
aid
provider" and "Applications made directly by clients". The latter has the following text:
"You can apply directly to the Exceptional Case Funding team at theLegal
![]()
Aid
Agency. You don't have to name a solicitor in the application.
How to apply
It may help you to provide the right information if you use the forms for makinglegal
![]()
aid
applications.
The CIV ECF1 form asks questions about why you're applying for exceptional funding. The means and merits forms ask questions about your financial circumstances and your case. If you need help about which form to use then phone us or email the Exceptional Case Funding Team (ECF).
If you don't use the forms we can only give you a preliminaryview
based on your information.
As a minimum, send the following to us in writing:
. Background to your case, including all the main facts.
. What you needlegal
advice on or what court proceedings you need representation in. Explain why you cannot represent yourself.
. What outcome you wish to achieve.
. Information that will support your application eg court applications and orders, expert and medical reports, copies of any decisions you wish to challenge.
. Information on your financial situation.
We cannot give youlegal
advice on the merits of your underlying case but we will consider your application.
What happens next?
We'll send you a decision in writing.
If you sent us information about your case instead of filling out the form, we can only provide you with a preliminaryview.
This is not a guarantee that exceptional funding will be granted after consideration of a full application. Also, we may change our decision either way if, for example, new information or evidence is provided to us. Whatever decision we make you may seek help from a
legal
adviser."
The website than gives an address for the ECF Team, an email address, and a telephone number.
The Appellants' Case on Ground 1B: Complexity of the ECF Form
legal
aid
under LASPO s.10. No doubt improvements could be made. But the form's imperfections do not amount to a condemnation of the scheme's
legality,
which is not to be measured by reference merely to the possibility that a better job might be done. There is a cross-over here between Grounds 1A and 1B: as I have already held, the points the judge makes are in essence a series of individual exhortations to improvement. It is to be noted in this context that Richard Miller, Head of
Legal
Aid
at the Law Society, said during the consultation process relating to the ECF scheme:
"…There is general concern about how long the form is, and the practicality of practitioners being asked to take on such work for free. However, given the nature of the test the Government has set, I am not convinced there is a lot the LSC can do about that…"
caseworkers
to make a s.10(2) determination. And to the extent that the judge thought that the process was needlessly prolonged by the requirement for completion of the means form at the same time as the ECF form (I think this criticism is no more than implicit in the judgment – paragraph 54), it is said that delays in making ECF awards would arise if the LAA first made a decision on ECF criteria and then sought means (and merits) information. If an applicant does not satisfy the means test, he or she will be ineligible for
legal
aid.
The means assessment involves a straightforward test which does not require the provision of
legal
advice or the exercise of discretion by LAA. As regards the judge's reference to the LAA's insistence on excessive detail (paragraph 65), "the appellants maintain that it is entirely reasonable for them to request, for example, information relevant to capacity such as learning difficulties or a long-standing mental health condition which is said to prevent an ECF applicant from representing himself" (skeleton argument paragraph 28). Then there are the judge's strictures about an emergency procedure. But the emergency procedure applicable to in scope applications was (as the judge noted) disapplied in ECF cases by paragraph 66(3) of the Civil
Legal
Aid
(Procedure) Regulations 2013, and there has been no challenge to the
vires
of that measure. The ECF form in fact contains two sections where the applicant is invited to provide any details of urgency, and the LAA prioritises those applications it assesses to be urgent.
The Appellants' Case on Ground 1B: Facts and Figures Relating to ECF Applications
"Statements have been lodged by providers who have made some 20% of applications for ECF. This has been relied on by Mr Chamberlain in submitting that it cannot be said to represent other than a relatively small proportion of those who have made such applications. In addition, the first defendant has evidence from Helen Keith, a solicitor in his ECF team, making the point that some 24 of the providers who have lodged statements have not submitted any application for ECF, a further 20 have submitted only one and a further 13 only two. This is relied on to suggest that there has been insufficient knowledge or experience of the scheme to justify the criticisms. Further, overall the point is made on the defendants' behalf that much of the evidence relied on relates to an approach dictated by the guidance which set too high a threshold and which I and the Court of Appeal decided was unlawful."
volumes
of unmeritorious claims being made at public expense"). There is also an associated point: there is a degree of uncertainty (I think Miss McGahey would put it higher) as to the proportion of problems and difficulties spoken to in the evidence relied on by the claimant as regards which the relevant facts occurred before the decision in G.
"29. Until my decision in June 2014, the success rate in grants of non-inquest ECF amounted to a little over 1%. That on anyview
is a
very
worrying figure. It has since increased. There has been some argument about the precise calculations, but I need not go into detail. Suffice to say that I am satisfied from the claimant's evidence, albeit the defendants have said that the success rate has risen above 15%, it is more likely to be, when proper account is taken of the limitation to non-inquest cases, about 13%. That remains a
very
low figure."
The 1% and 13% figures are largely borne out by a useful table before us, to which I have already referred (page 394 of the Core Bundle), showing the figures for non-inquest ECF applications between April 2013 and March 2015. The total number of applications was 2258, and the total number of grants 123. Before Collins J's judgment in G was handed down in June 2014 the success rate was steady at about 1% (2.1% between October and December 2013). Then in April – June 2014 it rose to 7.9%, with a peak of 16% between October and December 2014.
legal
aid:
MAK
v
UK (2010) 54 EHRR 14, paragraph 45. The appellants would I think say that the use of judicial review to correct errors by the LAA tends to undermine the judge's conclusion at paragraph 93, which I have read, that judicial review is "not an entirely satisfactory remedy" and that a right of appeal should be provided.
vouched
by evidence summarised in a series of references in the Scott Schedule. They include the following. "The LAA accepts that it could have been more helpful to JLE" (Scott Schedule p. 4); "the [appellants] accept that it would have been better for the decision-maker to seek further information on the contact application before refusing the ECF application" (p. 8; the reference is to the case of KB); "the [appellants] accept that making a first application for ECF will require particular thought. The process should become easier with subsequent applications" (p. 24); "the [appellants] accept that the decision, which was made before [G], would have been different if made after that case. The decision-maker's reasoning was poor…" (p. 34); "the LAA accepts that, particularly in the early stages of the ECF scheme's administration,
caseworkers
sometimes said that there was no evidence of individual
vulnerability"
(p. 45); "the [appellants] accept that errors were made, particularly in the early days of the ECF scheme" (p. 55). There are a number of other instances in which the LAA accept that mistakes were made (and in many cases corrected). There are also references to better decision-making after G, a fact reflected, no doubt, in the increase in the success rate.
Conclusion on Ground 1B
view
significant that in assessing the
legality
of
legal
aid
schemes the Strasbourg court has had some regard to the challenge posed by limited public resources: see paragraph 63 below and the cases of X and Ivison, discussed in the context of Ground 2. Moreover the website and helpline are, I think, of significant material assistance to potential applicants.
Lord
Chancellor
and the LAA in the administration of LASPO s.10.
Lord
Chancellor
will be astute to look for improvements, and will do so on a continuing basis.
GROUND 2: THE MERITS REGULATIONS
legality
of the merits tests for the grant of
legal
aid
contained in the Regulations. I have set out or summarised the relevant provisions at paragraphs 7 and 8. The Regulations apply both to in scope and out of scope cases. Collins J acknowledged (paragraph 82) that "in deciding whether or not to grant
legal
aid
the State is entitled to apply merits criteria. This has been upheld by the ECtHR in a number of cases". But he held (paragraph 96) that the need to demonstrate an even or greater than even chance of success was unreasonable as was the removal of the "borderline" category of cases: "[t]he rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable." (paragraph 106)
legal
aid
is withheld on merits grounds, providing that (i) the restriction on the right to present one's case effectively and without obvious unfairness is proportionate and (ii) the
very
essence of the right is not impaired"; and, he says, the Regulations fall short of these criteria.
Mr Chamberlain submits that Mr Hermer's argument entails the proposition that in principle the
legal
aid
decision-maker must always be prepared to set aside the merits test; but that is not supported by the Strasbourg jurisprudence.
legal
services and the category of case for which funding is sought. Examples where prospects of success do not have to be shown are
Legal
Help, Family Help (Higher), and certain classes of mental health cases, Court of Protection cases and public law children cases. As a feature of the Regulations this is I think material to Mr Chamberlain's submission that a key factor in the
legality
of arrangements for the grant or withholding of
legal
aid,
in line with the Strasbourg cases, is that the process should not be arbitrary.
v
UK, App. No. 8158/78, (1980) 21 DR 95. In a passage which has been much repeated by the Commission and the Court, the Commission stated (paragraph 16):
"It is self-evident that where a state chooses a 'legal
![]()
aid'
system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be
legally
![]()
aided.
Such limitations on the availability of free
legal
![]()
aid,
common to most Convention countries, often require a financial contribution or that the proposed litigation have reasonable prospects of success. In the Commission's
view,
Article 6(1) [sc. of the ECHR] does not require that
legal
![]()
aid
be provided in every case, irrespective of the nature of the claim and supporting evidence. Where an individual is refused
legal
![]()
aid
in a particular case because his proposed civil claim is either not sufficiently well grounded or is regarded as frivolous or
vexatious
the burden would then fall on him to secure his 'access to court' in some other way such as, for example, bringing the action himself or seeking assistance from some other source. Accordingly the Commission is of the opinion that where a prisoner has been refused
legal
![]()
aid
on the basis that his claim lacks reasonable prospects of success such a situation would not normally constitute a denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary."
v
United Kingdom (1997) 24 EHRR CD38 is to like effect (indeed the Commission cited the X case), but is perhaps of particular interest because the claimant (a prisoner) was under a mental disability and so could not as a matter of law bring proceedings without a lawyer.
Legal
aid
for a malicious falsehood claim was withdrawn on the grounds that there were no reasonable prospects of success and that the costs of funding the litigation were likely to be disproportionate to any damages awarded. In Aerts
v
Belgium (2000) 29 EHRR 50 and Gnahoré
v
France (2002) 34 EHRR 38 it was held (or in Gnahoré, perhaps suggested) that the refusal of
legal
aid
to a claimant who was required to have counsel impaired the "
very
essence" of his Article 6 right. However in Del Sol
v
France (2002) 35 EHRR 38, the Court, if I may respectfully say so, backtracked somewhat:
"24. It is true that in Aerts, the Court found aviolation
of Article 6 § 1 after noting that by 'refusing the application [for
legal
![]()
aid]
on the ground that the appeal did not at that time appear to be well-founded, the
Legal
![]()
Aid
Board impaired the
very
essence of Mr Aerts's right to a tribunal'…
25. However, the Court considers it important to have due regard to the quality of alegal
![]()
aid
scheme within a State.
26. The scheme set up by the French legislature offers individuals substantial guarantees to protect them from arbitrariness. TheLegal
![]()
Aid
Office of the Court of Cassation is presided over by a judge of that court and also includes its senior registrar, two members chosen by the Court of Cassation, two civil servants, two members of the Conseil d'Etat and Court of Cassation Bar and a member appointed by the general public (section 16 of the Law of 10 July 1991 cited above). Moreover, an appeal lies to the President of the Court of Cassation against refusals of
legal
![]()
aid
(section 23 of the Law). In addition, the applicant was able to put forward her case both at first instance and on appeal.
27. In the light of the foregoing, the Court holds that theLegal
![]()
Aid
Office's refusal to grant the applicant
legal
![]()
aid
to appeal to the court of Cassation did not infringe the
very
essence of her right of access to a court."
v
United Kingdom (App. No. 39030/97) shows that the Strasbourg court is alert in this context to the impact of limited public resources, an aspect already referred to in X. The Court said:
"Though the pursuit of the proceedings as a litigant in person by the applicant's mother would not have been an easy matter with or without other assistance, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice and the manner in which it functioned in this case has not been shown to be disproportionate or to impinge on the essence of the right of access to court (see the judgment Del Solv.
France…)"
v
Germany (2007) 54 EHRR SE7 the question was whether "the
legal
aid
system offers individuals substantial guarantees to protect them from arbitrariness". Merits tests,
variously
upheld by the Strasbourg court, have been of different kinds: a circumstance which itself suggests that the root principle is that the
legality
of whatever system is chosen depends not so much on the stringency of its particular features but on whether it is reasoned and proportionate, thus avoiding the
vice
of arbitrariness. It is clear in particular that the Court has disavowed any suggestion that
legal
aid
must be granted for proceedings where representation is compulsory. It is true, as Mr Hermer submits (skeleton argument paragraph 30), that in many cases the Court placed emphasis on the fact that the
legal
aid
scheme was administered by the national courts themselves; and Collins J stated at paragraph 92:
"The court was able to distinguish Aerts in Del Sol because of the involvement of judges of the court in considering the grant oflegal
![]()
aid
and a right of appeal to a judicial body against a refusal. I see no reason to distinguish Aerts where, as here, there is no judicial input into the decision making process and no right of appeal. This applies only if there would be an infringement of the
very
essence of the right of access to a court or tribunal. That would be the position in the case if an individual who lacked capacity, could find no litigation friend willing to act and the OS could not himself act as litigation friend unless
legal
![]()
aid
were granted."
But I do not read the cases as showing that the court's involvement in determining
legal
aid
applications is a definitive touchstone of the system's
legality.
Of course it is true that if the court is so involved, there is an obvious sense in which the applicant has access to it; but it is a rather empty sense if his engagement with the court stops at its refusal of
legal
aid.
The system's
legality
depends, surely, on its quality: its application of a reasoned sensitivity to the particular case.
legal
aid
which cannot be condemned as arbitrary. The merits criteria are carefully specified and exceptions carefully spelt out: note in particular the specification of "borderline" and "unclear" cases in Regulation 5. There is an internal review procedure (see Reg. 69 of the
Legal
Aid
(Procedure) Regulations 2012). As we have seen, judicial review is available and effectively deployed.
GROUND 3: THE GUIDANCE
legal
aid
to the highest priority cases". But the Guidance does not commend any such limitation, as the balance of paragraph 8 makes clear. It is, moreover, a legitimate purpose of LASPO that the availability of civil
legal
services be confined to cases judged to be of the greatest need: see for example, R (Rights of Women)
v
Secretary of State for Justice [2015] EWHC 35 (Admin) per Lang J at paragraph 54.
legal
error. As for paragraph 39, Collins J said this:
"69… The guidance does not deal with Article 8 albeit the court in G made it clear that the procedural requirements inherent in Article 8 are essentially the same as those in Article 6(1). Effective access required to protect Article 8 rights is needed and that means thatlegal
![]()
aid
is required to ensure that there is such access and it is fair. Thus the approach set out in paragraph 39 would seem to be applicable where article 8 rights are concerned.
70. If followed literally, paragraph 39 would seem to be intended to mean thatLegal
Help would not be available in circumstances where an applicant wants to know whether his case does merit
legal
assistance. That is the gap in the scheme to which I have referred. I think the guidance is too limiting and fails to recognise that without
Legal
Help there may well be a real risk that lack of further
legal
assistance will breach Convention or EU rights."
"65. The judge noted that paragraph 39 set out the approach to be adopted in respect of cases in which Article 6 was engaged. He observed that a similar approach 'would seem to be applicable' when Article 8 rights were concerned. He went on to conclude that the Amended Guidance was too limiting, and failed to recognise that withoutLegal
Help there was a risk that certain applicants' Convention rights would be breached. However, the judge was wrong to find any error in this paragraph. To the extent that the Judge took issue with the reference to Article 6(1), it is entirely correct that 'where the source of the obligation to provide
legal
![]()
aid
is Article 6(1)' the obligation will only arise where there is a determination of civil rights or obligations. It is not suggested that this applies in cases where the source of the right is Article 8 (which is dealt with separately at paragraphs 27-29 of the Amended Guidance)."
legally
insupportable; Mr Hermer certainly does not. I do not think it necessary to say any more about them.
CONCLUSION
LORD
JUSTICE BRIGGS:
Lord's
analysis and conclusions on Grounds 2 and 3 of this appeal, to which there is nothing that I could usefully add.
Lord's
legal
analysis of the issues arising under Ground 1, and with his conclusion that it is not possible to discern with sufficient clarity that the judge applied that analysis, so as to distinguish between a system which, although blighted by multiple instances of unfairness, is inherently lawful, and a system rendered unlawful by inherent unfairness. I agree therefore that this is an issue with which this court has to grapple afresh, on the
voluminous,
but largely uncontentious, evidence deployed by the parties. It is an issue fairly categorised as in some respects a matter of degree, about which a judgment has to be formed which may be described as inexact and even impressionistic, as my
Lord
says. The question is whether the evidence demonstrates an inherent or systematic failure, in which case the ECF system must be ruled unlawful, or whether, as both my
Lords
have concluded, it is merely a new system, being operated by persons on both sides on a learning curve, with
very
serious teething troubles, but falling short of inherent unfairness.
Lords.
In my judgment the defects in the procedures for applying for ECF in the system in place at the time of the hearing before Collins J were systematic and inherent, to the extent that rendered the scheme inherently unfair, so that I would have been disposed to dismiss this appeal under Ground 1B.
voluminous
evidence relevant to this issue, and the parties' submissions upon it, in such admirable detail that I need not undertake any similar exercise myself. Furthermore, since I am dissenting only on a matter of judgment rather than
legal
principle, it is unnecessary for me to state my reasons in anything other than an abbreviated form. They are as follows.
i) The ECF scheme uses an application form which is addressed to, and plainly designed only to be completed by, lawyers on the applicants' behalf. The form does not therefore even attempt to make the process accessible to an applicant without a lawyer, i.e. a would-be LiP.
ii) Although there is limited guidance for LiPs on a website, and on a telephone helpline, it is demonstrably so inadequate for that purpose that only one LiP applicant has ever navigated the scheme successfully.
iii) In sharp contrast with "in-scope"
Legal
Aid,
the ECF scheme does not provide any form of funding for the substantial time and effort required of a lawyer to complete the necessary forms, nor does the prospect that an application will succeed (now 13%) provide anything approaching a sufficient economic incentive to make it a sensible business proposition for lawyers to undertake ECF applications. The success rate for "in-scope" applications of 89.9% provides, by contrast, a plainly sufficient incentive to qualified lawyers to make the applications, and they can in any event obtain
Legal
Help funding for the purpose of doing so.
iv) There are therefore bound to be many potential applicants for ECF whose circumstances would qualify them to receive it, but who are disabled from doing so by the combined effect of a system for application designed to be operated by lawyers, and the lack of any sufficient economic business model to encourage lawyers to undertake the work required for that purpose, at least for persons who are not already their clients.
view
the combination of those two features, namely an application process which is inaccessible to most LiPs and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, which makes the ECF scheme inherently defective and therefore unfair. Neither of those features would necessarily do so on its own. They are however both features which are inherent to the chosen scheme for application for ECF, rather than a way of summarising a series of individual misfortunes incurred by those who have sought to use it. But just as a series of individual misfortunes will not be sufficient to prove that a scheme is unlawful, nor will the fact that a small number of applicants for ECF have successfully obtained it prove that the scheme is fair or lawful, if it is inherently defective.
Lords
have been persuaded that the evidence of the features which I have summarised above fails to demonstrate systematic or inherent unfairness because:-
a) The success rate has risen, as a result of the Gudanaviciene case from 1% to 13% of applicants.
b) The evidence of the defects in the scheme came from only 20% of the law firms making applications for ECF, and was mainly based on experience prior to that change.
c) Much of the criticisms in the evidence related to bad experience of the operation, rather than essential structure, of the scheme, all the participants in which may fairly be described as on a learning curve.
volume
of evidence (some of it harrowing to read) about the way in which, in particular, LiP applicants for ECF have been treated. But this really misses and sometimes obscures the target in relation to the key features of the scheme which I consider make it inherently unfair. It may well be that improvements in the management of the handling of applications will address many of these concerns, but it is not easy to see how experience of making ECF applications which, even now, have only a 13% success rate, will provide an economic model which encourages solicitors to undertake the work, or reduce the amount of chargeable time required to a level which enables solicitors to accept a retainer for that purpose from would-be clients who, ex hypothesi, cannot afford to pay for it.
voluminous
evidence, obtained (we were told) from firms widely spread across the country, is significantly undermined by the fact that they represent only 20% of those who have made ECF applications. As Mr Hermer QC for the respondents submitted, that might have been a serious shortcoming if the essential thrust of that evidence had been seriously challenged, but it was not. It is no answer in my
view
to say that a number of professionally represented applicants have obtained ECF, presumably from solicitors prepared to act pro bono, at least in relation to the 87% of those applications which, even now, fail and lead to no retrospective payment for the cost of making them.
vitiating
features of the scheme (as I see it), namely its inaccessibility to LiPs and the lack of any business economic model sufficient to encourage solicitors to participate in it.
very
far below the estimates made prior to the launch of the scheme. Its unfairness (to my mind) lies precisely in the effect that the two inherent defects in it which I have identified discourage many would-be applicants, with deserving applicants among them, for applying for ECF at all. In short, all but a
very
few are unable to do so on their own, and most find it impossible to obtain the services of a qualified lawyer for the purpose of making the application. The fact that, of those who do surmount those inherently unfair obstacles, only 13% even then succeed in obtaining ECF is nothing to the point. It may well be that this will continue to be a typical success rate, and one which is not itself inherently unlawful in a scheme for the provision of exceptional
Legal
Aid
for out of scope cases. But for as long as the success rate remains anything like as low as 13% the absence of a business incentive for solicitors to undertake the making of such applications for new clients seems to me to remain an inherent defect in the scheme, for as long as it continues to be designed (for example by the structure and content of the application form) to be accessed primarily by applicants with
legal
representation for the purpose, rather than by LiPs.
valiant
endeavours, those lawyers who offer to work pro bono for deserving clients are insufficient to meet anything approaching the demand for their services, so that there must be (however difficult to quantify) a substantial class of deserving applicants who can neither obtain ECF on their own, nor obtain the
legal
assistance necessary for them to do so.
LORD
JUSTICE BURNETT:
view,
I will make some observations on ground 1.
legal
aid
contracts to make such applications. In short, they are unable to make the commitment in time necessary to assist applicants for ECF because of the precarious nature of the finances of
legal
aid
solicitors (para 80, quoted above in para 21).
very
low rate of grant of about 1% under the guidance condemned in the Gudanaviciene case increased following both the first instance and Court of Appeal judgments. The judge concluded that the evidence before him suggested a success rate of about 13% by March 2015. He considered that grant rate to be too low. The judge commented "that remains a
very
low figure" (para 29) and "it may be that there was hope that after R(G) the abysmally low rates of grant would be increased to a reasonable level. That has not happened." (para 41).
legal
and non-
legal
endeavour professionals undertake work with no certainty of being paid and must make a judgment about whether to undertake what may turn out to be unpaid work. In the context of applications for ECF solicitors could be expected to judge with increasing accuracy those likely to succeed and those that will not. Only time will tell. But the bald figure of 13% in itself tells us nothing about whether the scheme is unlawful. It provides a shallow foundation upon which to erect a conclusion that solicitors will not engage in the process.
view,
the evidence relied upon from solicitors and others in support of that conclusion is not convincing.
legal
aid
provision and the Public Law Project. There are two general comments I would make about the nature of that evidence. First, many of the criticisms of the scheme being advanced by those who made statements relate to the scheme's operation before the judgment in the Gudanaviciene case at first instance, even though most of the statements post-date that judgment but pre-date the judgments in the Court of Appeal. That is of some significance, because the landscape radically changed as a result of the judgment of Collins J in that litigation. A good deal of the criticism, and thus the conclusions which the statement makers reach, undoubtedly relates to the earlier operation of the scheme. Secondly, whilst the evidence details the experience of seeking ECF in individual cases it also contain statements of intent for the future, coupled with wide-ranging criticisms of the scheme and other
legal
aid
changes which are perhaps more familiar in consultation responses, than evidence properly so called. It presents powerful arguments against the policy which informed the scheme; arguments which did not deflect the Government from introducing the scheme. Such statements of intent and argument should be approached with some caution.
legal
aid
in recent years has involved predictions of calamity should the proposed changes be introduced. Many of those changes have been challenged in judicial review proceedings. Some have succeeded and some have failed. The executive's response to proceedings has included a reminder that it is for the decision maker to make judgements about the likely consequences of any proposed changes, by taking into account the predictions of providers, but not necessarily accepting them. That is not to question the integrity or sincerity of those concerned, but to recognise that subsequent events sometimes confound the predictions. The appellants do not accept that the wholesale withdrawal of professional support for those applying for ECF will occur. In my
view
they are right to question whether the evidence supports that conclusion, both at a general level, for the reasons I have touched on, and at the specific level. It does not prove that the scheme is inaccessible or unfair.
view,
that criticism is well made and underlines the more general point that a good deal of the evidence relied upon is in large part argument of the consultation response sort.
variable;
and why applications were failing.
view,
to draw firm conclusions from them. Similarly, the individual experiences recounted in the evidence do not support the general conclusions urged upon us by the respondent.
legal
nature. But, like Laws LJ, I consider that the assistance provided by the LAA to individual applicants, which is flagged up on the website, supports the conclusion that on this aspect the scheme satisfies the relevant
legal
test. I would observe that the judge himself said in para 105, "As I indicated, what is put in the website can surely be put on the form." That was a reference back to para 54 where the judge had said:
"I see no reason why a form for those who do not have providers should not in addition be prescribed. This need do no more than require the information set out in the website. The LAA has trained lawyers for whom it should be simple … to see whether it appears that there would be a need forlegal assistance."