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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Faulkner, R (on the application of) v Director of Legal Aid Casework [2018] EWCA Civ 1656 (19 July 2018)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1656.html
Cite as: [2018] 4 Costs LR 841, [2018] WLR(D) 459, [2018] EWCA Civ 1656, [2019] 1 WLR 560

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Neutral Citation Number: [2018] EWCA Civ 1656
Case No: C1/2016/1797

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mostyn

[2016] EWHC 717 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL
19/07/2018

B e f o r e :

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE PETER JACKSON
and
THE RIGHT HONOURABLE LADY JUSTICE ASPLIN DBE

____________________

Between:
REGINA (on the application of DANIEL FAULKNER)

Appellant
- and –


DIRECTOR OF LEGAL AID CASEWORK
Respondent

____________________

Hugh Southey QC and Jude Bunting (instructed by Juliet Spender, of Irwin Mitchell LLP) for the Appellant
Paul Nicholls QC and Malcolm Birdling (instructed by Central Legal team, Legal Aid Agency) for the Respondent
Hearing date : 5 July 2018

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lady Justice Asplin:

  1. This appeal is concerned with the discretion to waive the Legal Aid "statutory charge" in circumstances in which the charge would be recouped from damages awarded as compensation for a breach of Article 5(4) of the European Convention on Human Rights, as enacted by the Human Rights Act 1998 ("Article 5(4)").
  2. In 2001, the Appellant, Mr Faulkner was sentenced to custody for life in accordance with section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The tariff period was set at two years and eight and a half months less time spent on remand. The tariff expired in April 2004 and Mr Faulkner became eligible for parole. There were delays in Mr Faulkner's case being referred to and dealt with by the Parole Board. In October 2008, he was granted permission to apply for judicial review of the failure of the Parole Board and the Secretary of State to conduct a review of his detention, in breach of Article 5(4). It was heard in June 2009 and was dismissed. An appeal was allowed by the Court of Appeal ([2010] EWCA Civ 1434; [2011] HRLR 165). The Court of Appeal held that Mr Faulkner had suffered a breach of his Article 5(4) rights lasting for a period of 10 months as a result of unjustified delays on the part of the Ministry of Justice and accordingly, was entitled to compensation under Article 5(5). In its decision on quantum, ([2011] EWCA Civ 349; [2011] HRLR 489), the Court of Appeal ordered the Secretary of State to pay Mr Faulkner £10,000 in respect of the breach.
  3. The Parole Board appealed to the Supreme Court on the basis that the award of compensation was excessive and Mr Faulkner cross-appealed against the award on the ground that it was inadequate. He was also granted permission to argue that his detention after his case should have been reviewed by the Parole Board constituted false imprisonment at common law or a violation of Article 5(1) of the Convention. The Parole Board's appeal succeeded and the award of damages was reduced to £6,500. Mr Faulkner's cross-appeal was dismissed. The Parole Board sought its costs of the appeal to the Supreme Court but not any costs below. Mr Faulkner, who had been publicly funded throughout, also sought his costs for reasons which included the fact that without an award in his favour he would not receive any damages despite the award of £6,500 as a result of the "statutory charge" and that such an outcome would be contrary to his human rights. Having considered the parties' submissions, the Supreme Court ordered that Mr Faulkner pay the Parole Board's costs in the Supreme Court in accordance with either section 11 of the Access to Justice Act 1999 or section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the regulations made thereunder.
  4. Curiously, no steps have been taken to enforce the Supreme Court's order for costs. Nevertheless, on 17 April 2014, Mr Faulkner's then solicitors wrote to the Legal Aid Agency (the successor to the Legal Services Commission) to ask that the statutory charge be waived. By a letter of 7 October 2014, the Legal Aid Agency refused the request on the basis that:
  5. "Under Regulation 47 (CLS) Financial Regulations 2000 discretion arises but this is exercised rarely and only in exceptional circumstances. Typically the Agency would select a test case from a number of identical cases and run that case in the interests of public money. This would usually be agreed at the start of the case so as to not penalise the client taking the case potentially for the benefit of others. Paragraph 5.6 of the Funding Code Manual explains the Agency's position in detail."
    (the "Refusal").

    In a subsequent letter dated 17 December 2014, which was in response to Mr Faulkner's letter before claim, the Legal Aid Agency stated that it did not accept that the Decision was susceptible to judicial review in the way which had been suggested. The Legal Aid Agency went on to state that the discretion to waive the statutory charge in cases of wider public interest contained in regulation 47 of the Community Legal Service (Financial) Regulations 2000 (as amended) (the "2000 Regulations") arises where two conditions are met. The conditions and their effect were described as follows:

    "The first is that the case must have been funded in the belief that it has significant wider public interest; the second is that our client chose to fund the case of the particular claimant or claimants on the ground that it was cost effective to do so but not to fund the case of other claimants. These are questions of fact and as the guidance (which you quote) states these conditions must be satisfied at the start of the case, (although the formal discretion is only exercised at the conclusion of the case when damages have been recovered). On the facts as you have presented them, your client does not satisfy these conditions."

    The Legal Aid Agency then clarified that although there was reference to "exceptional circumstances" in the Refusal, "exceptionality" was not the basis for the relevant decision making and that despite the use of the term "[T]ypically" in relation to the selection of a test case in the Refusal, the conditions set out in regulation 47 were the only circumstances in which the discretion to waive the statutory charge arises.

  6. In any event, it is the Refusal itself which was challenged by way of judicial review before Mostyn J on 8 March 2016. Mostyn J dismissed Mr Faulkner's claim for judicial review for the reasons set out in a judgment dated 8 March 2016, the neutral citation of which is [2016] EWHC 717 (Admin) and it is that decision which is the subject of this appeal.
  7. The grounds of appeal are that Mostyn J erred in law by: finding that the Supreme Court had decided that Mr Faulkner's human rights arguments against him and treating the Supreme Court's costs order as determinative of the claim; rejecting the human rights arguments on the basis of flawed reasoning; and adopting the wrong approach to the statutory construction of regulation 47 of the 2000 Regulations.
  8. Before turning to the relevant legal framework, I should add that despite the fact that reference had been made in counsel's opinions on the merits to Mr Faulkner's case including points of wider public or general interest, it is common ground that no one thought about the criteria in regulation 47 of the 2000 Regulations before the litigation was concluded. Although Mr Southey QC on behalf of Mr Faulkner cautioned us about what might be ex post facto reasoning, it is of note that the witness statements by the relevant Legal Aid caseworker, Mr Reddin are consistent with the common ground. Mr Reddin explains his decision-making process when determining whether to grant legal aid in relation to Mr Faulkner's claim. He states that he applied the standard cost/benefit test. In any event, in oral opening, Mr Southey accepted that it was only with hindsight that one may have concluded that Mr Faulkner's case satisfied the criteria in regulation 47 and that one would not have done so at the outset of the litigation.
  9. Legal Framework

  10. The grant of public funding for the purpose of Mr Faulkner's appeal to the Supreme Court was made before the commencement of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 regime. It is, therefore, a "pre-commencement" case for the purposes of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential, Transitional and Saving Provisions) Regulations 2013 and Part 1 of the Access to Justice Act 1999 (the "1999 Act") and all orders, regulations, guidance, directions or authorisations made or given under the 1999 Act, in so far as they were in force immediately before 15th April 2013, apply.
  11. The "statutory charge" was to be found in section 10(7) of the 1999 Act. It provided as follows:
  12. "(7) Except so far as regulations otherwise provide, where services have been funded by the Commission for an individual as part of the Community Legal Service—
    (a) sums expended by the Commission in funding the services (except to the extent that they are recovered under section 11), and
    (b) other sums payable by the individual by virtue of regulations under this section,
    shall constitute a first charge on any property recovered or preserved by him (whether for himself or any other person) in any proceedings or in any compromise or settlement of any dispute in connection with which the services were provided."

    Further, regulation 43(1) of the 2000 Regulations provided, where relevant, that: "where any money or property is recovered for a client in a relevant dispute or proceedings, the amount of the statutory charge shall be the aggregate of the sums referred to in section 10(7)(a) and (b) of the [1999] Act."

  13. The purpose behind the statutory charge was set out at paragraph 2.1 of the Statutory Charge Manual issued by the Legal Aid Agency in April 2014 which is set out at [21] of the judge's judgment as follows:
  14. "1 The statutory charge is designed to:
    (a) put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98.)
    (b) ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
    (c) deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.
    2 For about as long as there has been a solicitors' profession, solicitors have had a charge for any unpaid fees over any property they recover or preserve for their client. This is known as the 'solicitor's charge'. Section 73 of the Solicitors Act 1974 provides: 'Any court where a solicitor has been employed to prosecute or defend any suit, matter or proceeding may ..... declare the solicitor entitled to a charge on any property recovered or preserved through his instrumentality for his taxed costs ..... '
    3 The law that creates the statutory charge is based on the solicitor's charge. The principle behind the solicitor's charge is that it is fair for solicitors to be able to take their costs out of any property their clients recover or preserve because of the services provided."
  15. By virtue of regulation 44 of the 2000 Regulations, some awards were exempt from the statutory charge altogether. For the most part, they are awards made in family proceedings. Regulation 46 contains a power to waive all or part of the statutory charge where the charge is in favour of the solicitor referred to as the "supplier" where "its enforcement would cause grave hardship or distress to the client or would be unreasonably difficult because of the nature of the property." A similar provision had been contained in regulation 33 Legal Advice and Assistance Regulations 1989/340.
  16. Regulation 47 of the 2000 Regulations with which this appeal is concerned, also contains provisions relating to the waiver of the statutory charge. They were new. The regulation applies to proceedings which are of "significant wider public interest". It is in the following form:
  17. "47
    (2) Paragraph (3) applies where:
    (a) the Commission funds Legal Representation in proceedings which it considers have a significant wider public interest; and
    (b) the Commission considers it cost-effective to fund those services for a specified claimant or claimants, but not for other claimants or potential claimants who might benefit from the litigation.
    (3) Where this paragraph applies, the Commission may, if it considers it equitable to do so, waive some or all of the amount of the statutory charge."

    "Wider public interest" for the purposes of regulation 47(2)(a) is defined as meaning: ". . . the potential of proceedings to produce real benefits for individuals other than the client (other than any general benefits which normally flow from proceedings of the type in question)." See regulation 2.

  18. For cases funded after 31 March 2013, section 10(7) is replicated in similar terms in section 25 Legal Aid, Sentence and Punishment of Offenders Act 2012. The provisions in relation to waiver of the statutory charge in cases of significant wider public interest are now found in regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013/503. It takes a different form from regulation 47:
  19. "Waiver of the statutory charge in cases of significant wider public interest
    (1) The Lord Chancellor may, where the Lord Chancellor considers it equitable to do so, waive all or part of the amount of the statutory charge, if the following conditions are satisfied –
    (a) The Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and
    (b) The Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings."

    "Significant wider public interest" is defined in regulation 9(2) as having the same meaning as in the Civil Legal Aid (Merits Criteria) Regulations 2013. At regulation 6 of those regulations, it is stated that

    "a case is of significant wider public interest if the Director is satisfied that the case is an appropriate case to realise—
    (a) real benefits to the public at large, other than those which normally flow from cases of the type in question; and
    (b) benefits for an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual's family."

    Construction of Regulation 47(2)

  20. It is common ground that the discretion whether to waive all or part of the statutory charge under regulation 47(3) arises at the end of the case because it is only at that stage that the statutory charge itself arises. If the client has been successful and obtained a full costs order it is very unlikely that a statutory charge will arise. Furthermore, it is common ground that the purpose of the waiver is to avoid the injustice which might otherwise arise were the litigant in a "test case" to bear the greater risk and additional costs involved in obtaining a decision in relation to the point in issue.
  21. It is also accepted that the discretion in regulation 47(3) only arises if the requirements of regulation 47(2) have been satisfied. The question is whether they can be satisfied after the end of the litigation in which the statutory charge would apply unless the discretion to waive is exercised. The Judge decided that it was clear that the requirements in regulation 47(2) must be satisfied at the beginning or during the case and not after its conclusion. He held as follows:
  22. "27. . . . Looking at the language of the regulation, it seems to me to be abundantly clear that the draftsman intended, even if he did not express himself at all well, that the decision as to whether, first, the proceedings had a wider significant public interest and, second, and more importantly, whether other cases should be funded in a different way has to have been made either at the beginning or during the course of the case. There is simply no other logical linguistic interpretation to be derived from this regulation. To my mind that is put beyond doubt by its replacement, Regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013 (SI 2013/503). In that, the language makes it absolutely clear beyond any doubt that the waiver decision is made at the end of the case but that the conditions precedent occur either at the beginning or during the course of the case.
    28. To my mind the difference between the two regulations does not demonstrate, as Mr Southey submits with a certain amount of force it has to be said, that the later regulation was changing the earlier regulation. To my mind the later regulation was clarifying the ambiguous meaning of the earlier regulation."
  23. I agree with the Judge that despite the fact that the discretion under regulation 47(3) arises at the end of the case, the criteria in regulation 47(2), the fulfilment of which are a prerequisite to the exercise of the discretion, must be satisfied at the beginning of the case or, at least, during it. In my view in the light of the way in which "significant wider public interest" is defined for the purposes of sub-sub-paragraph (a), by reference to the "potential" to produce real benefits for individuals other than the immediate client, the criterion in (a) must have been satisfied before the end of the litigation. The use of "potential" connotes a prospective exercise. Such a conclusion is consistent with the express wording of sub-sub-paragraph (b) and with regulation 47(2) read as a whole. It seems to me that the exercise or consideration with which that sub-sub-paragraph is concerned cannot be carried out after the litigation has come to an end and the litigation and accordingly, the funding in question is complete. The Commission (now the Legal Aid Agency) is required to consider whether to fund the specified claimant, in this case, Mr Faulkner, rather than other claimants or potential claimants of legal aid, who might benefit from the litigation. Inevitably, the decision to fund one case rather another or others cannot occur after the funding has already taken place. It seems to me that the use of the present tense rather than the past tense in both regulation 47(2)(a) and (b) is consistent with that interpretation.
  24. In fact, the version of the LSC Manual, which was the published guidance available when Mr Faulkner originally applied for legal aid, is consistent with this approach. It provided where relevant, as follows:
  25. "5.6 Financial Conditions
    . . .
    2.The Commission's aim is to ensure that issues with a significant wider public interest are brought to the court for determination in the most cost effective way. Often this will mean funding an individual test case to resolve the issue, even if the damages alone in that test case would not make it cost effective in itself. If the case is complex and not all issues are resolved in the client's favour, it is quite likely that a public interest test case would have significant irrecoverable costs. In the normal event these would not come out of the client's damages. The powers under regulations 38(9) and 47 above exist to ensure that such a client is not unduly penalised in relation to the client's own contribution or damages through having been chosen as the test case.
    3. Even though it will be made clear from the outset that a case is being funded as a test case, the formal discretion as to the statutory charge will only be exercised at the conclusion of the case when damages have been recovered. The existence of the limited power to waive the charge under the above regulation does not diminish the responsibility of solicitors to seek to maximise the recovery of costs from the other side in a successful public interest case. The Commission would be unlikely to waive any amount of the charge if a case was settled without recovery of costs simply in the expectation that the waiver would apply.
    4. Where contributions or the statutory charge are waived under the above regulation, it will not necessarily be waived in full. The aim of the regulation is to put the test case client in the same position as an individual claimant, who might still have some contribution or irrecoverable costs."

    Although the LSC Manual was amended in 2010, paragraph 5.6 remained the same.

  26. As I have already mentioned, I also agree with the Judge that the consideration or evaluation of the factors in sub-sub-paragraphs (a) and (b) can take place during the litigation. As Mr Southey submitted, there may be cases in which it only becomes clear during the proceedings that they have a significant wider public interest and that it would be cost-effective to fund those proceedings and not other claimants or potential claimants who might benefit from the litigation. That was not the case here. It is accepted that the consideration and evaluation required under regulation 47(2)(a) and (b) was not undertaken at any stage during the litigation.
  27. It cannot be correct, as Mr Southey suggested, that just because Mr Faulkner's case proceeded to the Supreme Court and a difficult point of law was adjudicated upon and as a result, it became easier to advise clients in the future, that the criteria in regulations 47(2)(a) and (b) can be satisfied in retrospect and it remains open to the Legal Aid Agency to exercise the regulation 47(3) discretion at this stage. If that were sufficient, a great many cases which reach the Supreme Court would be treated automatically as satisfying the regulation 47(2) criteria. It is important to bear in mind that the Legal Aid Agency is required to conduct the necessary evaluation both of the significance of the litigation it is being asked to fund or is funding and the likely effect of that litigation on other cases which it is being asked to fund. The Legal Aid Agency is required to consider, therefore, whether to fund one case and not another or others. That evaluation cannot be conducted retrospectively. The circumstances in which regulation 47 is likely to be relevant is where there are a large number of similar cases in relation, for example, to product liability, which the Legal Aid Agency is being asked to fund at or around the same time and which all raise the same or similar issues and in relation to which a "test case" is chosen. Regulation 47 might also be relevant where the very nature of the case for which public funding is sought is such that it has a wider public interest, such as judicial review of a public authority. Nevertheless, in the latter example, it is still necessary to satisfy regulation 47(2)(b) which requires the Legal Aid Agency to consider whether to fund those proceedings rather than others.
  28. In my view, therefore, to the extent that the old regime applies, where a case may be of wider public interest, in order to preserve the possibility of waiver of the statutory charge, should the need arise, it is essential that solicitors for a would-be legally aided client expressly ask the Legal Aid Agency at the point at which public funding is sought, to engage with the requirements of regulation 47(2). They should request an express decision as to whether the case in question has "significant wider public interest" and fulfils the criteria in regulation 47(2)(a) and (b). They should seek an express indication that the case has potential to produce real benefits for individuals other than the immediate applicant for funding and that it would be cost-effective for the Agency to fund the proceedings in preference to those of other applicants or would-be applicants who might benefit from it. They ought also to renew that application and/or to confirm the status of the litigation, if, for example, they seek to confirm funding to proceed to the Supreme Court.
  29. This is all the more so under the present regime. Sub-sub-paragraphs (a) and (b) of regulation 9(1) of the 2013 Regulations provide expressly that the criteria in (a) and (b) have to have been met when it was determined that the legally aided party qualified for legal representation. Mr Southey no longer submits that those regulations are of assistance to the proper interpretation of regulation 47 of the 2000 Regulations, other than to point out that if one wanted to make clear that it was necessary to meet the criteria at the beginning of the litigation one could easily have done so. I agree. However, it takes the matter no further forward.
  30. I therefore conclude that the requirements of regulation 47(2) cannot be considered and satisfied in retrospect and that therefore, the Legal Aid Agency was not in error in failing to do so and in refusing to waive the statutory charge in this case pursuant to regulation 47(3).
  31. Effect of the Supreme Court Costs Order

  32. The Judge concluded that, despite the fact that the Supreme Court provided no reasoning for its costs order, it could safely be inferred that it did not accept the human rights arguments that were advanced on behalf of Mr Faulkner in relation to the effect of the statutory charge upon his damages because, had the arguments been accepted, an order for costs in his favour would have been made: see [16] of the judgment. However, he made clear in the opening phrase of [31] that his conclusion in relation to the Supreme Court was only by way of observation. He went on, nevertheless, at [32] – [38] to give his own reasons on the human rights point and accordingly, to decide the matter for himself.
  33. If, in fact, the inference was a determinative factor in his reasoning, I agree with Mr Southey that the Judge was wrong to place reliance upon it. In the circumstances, the matter can be dealt with quite shortly. The Supreme Court made an order which followed the event. The Parole Board for England and Wales succeeded on their appeal and Mr Faulkner had lost his cross-appeal. Although complex submissions were made in relation to costs, including about the effect of the statutory charge on the damages awarded and the consequent alleged effect on Mr Faulkner's human rights, in the absence of reasons nothing dependable can be inferred from the costs order in relation to the merits of the human rights point in relation to the statutory charge. The question of waiver was always one for the Respondent to this appeal, the Director of Legal Aid Casework, and not for the Parole Board who was a party to the proceedings before the Supreme Court. In the circumstances, it was unnecessary for the Supreme Court to address the issues now raised.
  34. Freestanding Human Rights arguments

  35. In the light of my conclusion on the effect of regulation 47 it is necessary to consider whether the Judge was right to decide that Mr Faulkner's human rights pursuant to Article 5 of the Convention were not infringed by the Refusal.
  36. Mr Southey submits that the Respondent, as a public body for the purposes of section 6 Human Rights Act 1998, must give effect to Article 5(5) of the Convention which includes an express right to compensation where a person has been a victim of an arrest or detention in contravention of the Article. In addition, he submits that regulation 47 must be construed in a way which is compatible with Mr Faulkner's Convention rights, pursuant to section 3 Human Rights Act 1998. Whichever route is adopted, Mr Southey says that Mr Faulkner's Article 5 damages must be protected in full and accordingly, the statutory charge must be waived.
  37. The effect of his submission is that Mr Faulkner must be entitled to the £6,500 damages whatever the substantive and the costs outcome of the proceedings in the Supreme Court. It must be ring-fenced and the statutory charge must be waived. Otherwise Mr Faulkner will not receive full redress as a "victim" and the State, which breached his human rights in the first place, will be giving with one hand and taking away with the other.
  38. Mr Southey submits that breaches of Article 5 should be treated as falling into a special category because Article 5(5) is unique in containing an express remedy in damages and accordingly, those damages must not be eroded by the imposition of the statutory charge. In this regard, he relies upon a passage in the decision of the Grand Chamber of the European Court of Human Rights in Scordino v Italy (No 1) [2007] 45 EHRR 7.
  39. The Scordino case was concerned with an application for compensation for the excessive length of proceedings in Italy. The underlying proceedings having taken eight years to be determined, application was made for compensation for the delay under the "Pinto Act". The relevant Court of Appeal in Italy found the length of the proceedings to have been excessive and awarded the applicants €2,450 and apportioned legal costs in a way that significantly ate into the Pinto award. The applicants appealed to the Grand Chamber of the European Court of Human Rights. It decided amongst other things that there had been a violation of Article 6(1) on account of the length of the underlying proceedings and that the applicants could claim to be "victims" of a violation of the "reasonable time" principle for the purposes of Article 34.
  40. Having made clear at [195] that the application for compensation for delay in the judicial system must itself remain an "effective, adequate and accessible remedy", the ECtHR went on at [201] as follows:
  41. ". . . the Court finds it reasonable that in this type of proceedings where the State, on account of the poor organisation of its judicial system, forces litigants – to some extent – to have recourse to a compensatory remedy, the rules regarding legal costs may be different and thus avoid placing an excessive burden on litigants where their action is justified. It might appear paradoxical that, by imposing various taxes – payable prior to the lodging of an application or after the decision – the State takes away with one hand what it has awarded with the other to repair a breach of the Convention. Nor should the costs be excessive and constitute an unreasonable restriction on the right to lodge such an application and thus an infringement of the right of access to a tribunal."

    Having set out the relevant principles, they were applied to the facts and the ECtHR noted at [210] that the procedural costs which the applicant had to bear amounted to approximately two thirds of the compensation awarded. The Court considered that the "amount of procedural costs, and particularly certain fixed expenses (such as registration of the judicial decision)", may significantly have hampered efforts to obtain compensation. €8,400 was awarded by way of compensation for non-pecuniary damages and, €82,000 having been held to be excessive, €50,000 was awarded for costs and expenses incurred before the domestic courts and in Strasbourg.

  42. First, it seems to me that although Article 5(5) contains an express right to compensation, there is nothing to suggest that a breach of Article 5 is different from the breach of any other Convention right. I agree with the Judge that there is nothing which places it in a special category. Accordingly, although Mr Southey restricts his submission to Article 5 cases, if he is right that damages for breach of Article 5(4) cannot be eroded by the statutory charge, the same would apply in relation to the breach of any Convention right. That cannot be correct. In coming to that conclusion, I place no reliance upon the fact that proceedings in relation to wrongful detention are not amongst the class of cases which are expressly stated to be exempt from the statutory charge in regulation 44 of the 2000 Regulations.
  43. Secondly, in my view [201] of the Scordino decision is much too slender a branch upon which to hang Mr Southey's submission. It is in general terms and the case is concerned with Article 6 rights. Further, in the case itself, although the applicants were successful, the Grand Chamber refused to award the entirety of the costs claimed. Although other substantial damages were awarded, the unrecovered costs were far in excess of the award of non-pecuniary compensation for delay in the underlying domestic proceedings. There is no suggestion whether in Scordino itself or elsewhere in the European Court of Human Rights jurisprudence to which we were referred that the principle that costs should follow the event and that costs will be awarded even if they impinge upon non-pecuniary damages awarded is wrong. That is clear from Scordino itself and for example, from Saadi v United Kingdom (2008) 47 EHRR 17, a case which was concerned with a breach of Article 5(2). An award of €5,000 compensation for non-pecuniary damage was upheld and a total award of €3,000 costs plus VAT was made having taken into account that the majority of the written and oral proceedings had been taken up with an alleged violation of Article 5(1) which had been rejected. The total costs had been in the region of £43,000. There was no suggestion that either an issue-based approach to costs was incorrect or that the substantial inroad which the unrecovered costs would make upon the damages was a breach of the applicant's human rights.
  44. Thirdly, it seems to me that Scordino at [201] is concerned with: fixed costs or taxes under a domestic system which may create an unreasonable restriction on the right to lodge an application seeking redress for the failings of the judicial system and thus amount to an infringement of the right of access to a tribunal; and at its highest, with legal costs which place an "excessive burden" on litigants where their application for relief from breach of a Convention right is justified. There is no suggestion in this case that the legal costs themselves were excessive.
  45. Fourthly, in this case, Mr Faulkner did not seek merely to defend his award of damages in the Supreme Court. He sought an increase in the amount of damages awarded, was granted permission to cross appeal on new and additional grounds and lost. Just like any other litigant he and his then advisers were responsible for the scope of the case which was advanced and ought to have taken into account the possible costs consequences and should have conducted a cost/benefit analysis. As the Statutory Charge Manual itself explains in the extract set out at [9] above, the statutory charge is intended, as far as possible, to ensure that legally aided litigants are in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them), to ensure that they contribute towards the costs of funding their cases if they are able to do so and to deter them from running up costs unreasonably by giving them a financial interest in how much money is being spent. It seems to me that at all times, Mr Faulkner, like any other litigant, was subject to the risks of litigation and should have taken them into account. Having lost the appeal and the cross-appeal in which greater compensation was claimed, he cannot now seek to be insulated from the consequences by praying in aid his Convention right.
  46. Fifthly, were Mr Southey correct, a legally aided litigant would be placed at an advantage in this respect over one who is privately funded and in effect, would be treated as if his Convention rights were more extensive or were entitled to greater protection than the privately funded litigant. That cannot be correct. As the Judge pointed out at [34] of his judgment, even if a privately funded litigant is successful and a costs order is made in his favour, he is unlikely to recover more than 70% of his costs. In such circumstances, a modest award of damages may be eroded if not entirely eradicated by unrecovered costs. Further, as the Judge pointed out at [35] – [36] of his judgment, the effect of CPR Part 36 offers or an issue based costs order pursuant to CPR 44.2(5) and (6) may have the same effect, as would a decision to refuse to award costs as a result of unreasonable behaviour.
  47. For all of the reasons set out above, I would dismiss the appeal.
  48. Lord Justice Peter Jackson:

  49. I agree.
  50. Lord Justice Longmore:

  51. I also agree.


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