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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H, R (on the application of) v The Legal Services Commission  EWCA Civ 155 (28 February 2006)
Cite as:  EWCA Civ 155
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT
THE HON MR JUSTICE LEVESON
Strand, London, WC2A 2LL
B e f o r e :
| R ON THE APPLICATION OF "H"
|- and -
|THE LEGAL SERVICES COMMISSION
Nine other claimants were represented in person by their parents
who were assisted by JHR
Hearing dates : 24th January 2006
Crown Copyright ©
Lord Justice May:
"That hearing was attended by all three leading counsel and three partners of the lead solicitors. The panel had seen and read the lengthy joint advice and material provided for them including experts' reports. There is no suggestion that this hearing did not give all counsel and, indeed, all concerned, full opportunity to advance arguments against the discharge of the certificates.
The upshot of the hearing was that the FRC dismissed the appeal on the basis that there were no longer reasonable grounds for continuing to take the proceedings in relation to ASD and so far as the IBD claims were concerned, it was unreasonable for legal aid to be continued on the basis of cost benefit: see section 15(2) of the 1988 Act and regulation 77(e) of the regulation 77(a) of the 1989 Regulations and section 15(3) and regulation 77(c) respectively. Written reasons were provided running into 10 pages: this included an analysis of the key expert evidence."
"Whether on a super Wednesbury or a Wednesbury basis, and subject to however intensive a scrutiny, it has to be demonstrated that, in discharging an individual certificate, the FRC acted unfairly, applied an incorrect legal test, irrationally assessed the prospect of success (or based that assessment on irrational factual findings or assessments) or inadequately reasoned their decision. The FRC were undeniably entitled to take as their own starting point, the decision that they had reached in relation to the generic and lead certificates, with the added knowledge or comfort that their decision, vigorously challenged by judicial review, had been held by Davis J to be proportionate and rational, taking into account the relevant considerations, sufficiently reasoned and without procedural unfairness."
This correct formulation of the questions which the judge had to consider has an important bearing on what I consider to be the main proposed ground of appeal which Mrs H-R advances.
"As I have said, the FRC made it clear that in their view, these submissions were insufficient to establish prospects of success.
That conclusion is not entirely surprising because it is based on the premise that three specialist silks (writing the opinion), the panel, (including a further silk and three experienced solicitors), and the silk advancing the judicial review proceedings before Davis J had all misunderstood the purport of the evidence and that all these specialist lawyers did not refer the court to the very best evidence that supported the case which they sought to make. It also assumes that Davis J similarly fell into error.
… The issue is whether the FRC were entitled to reach the conclusion in these proceedings that they did about them: in my judgment, in the light of the history that I have recounted, it clearly was."
"Finally, before turning to the Convention grounds, I make it clear that I agree with the LSC that, in the light of the joint FRC's professional experience, to say nothing of the professional abilities of all those who made submissions before them, it is inconceivable that a standard of proof of 100% was applied rather than the balance of probabilities; there is nothing in any of the decisions (and in particular the decision in H's case) to support that allegation."
"I ought to make it clear that the medical evidence has not been put before me. In the papers, the claimant notes the disks containing all the reports are available if requested. In argument, H's mother said that the material would take weeks of study to master and did not submit that I should read it. Given the background (including the way in which the matter is put), and the lengthy analyses to which I have referred, I have not done so."