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Cite as: [2017] EWHC 410 (Admin)

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Neutral Citation Number: [2017] EWHC 410 (Admin)


Royal Courts of Justice
London WC2A 2LL
20 February 2017

B e f o r e :




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Mr Philip Engelman and Mr Robin Makin (Solicitor Advocate) (instructed by E Rex Makin & Co Solicitors) appeared on behalf of the Claimant
Mr Malcolm Birdling (instructed by the Government Legal Department) appeared on behalf of the First Defendant
Miss Cicely Hayward (instructed by the Government Legal Department) appeared on behalf of the Second Defendant



Crown Copyright ©

  1. MR JUSTICE MORRIS: In this case, Ian Stewart Brady ("the Claimant") applies for permission to bring a claim for judicial review of two decisions relating to his legal representation in proceedings ("the Proceedings") before the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health ("the Tribunal"). The Claimant wishes to be represented at those proceedings by a solicitor, Mr Robin Makin, and is seeking public funding for that representation.
  2. The decisions challenged are:
  3. (1) The decision of the Lord Chancellor dated 3 November 2016, the First Defendant, effectively not to make available or facilitate the public funding of Mr Makin as the Claimant's solicitor in the Proceedings.
    (2) The decision of the Tribunal, the Second Defendant, dated 4 October 2016 declining to appoint Mr Makin as the Claimant's legal representative under Rule 11(7)(a) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 ("the Rules").
  4. On 25 January 2017, on consideration on the papers, Ouseley J refused permission for the claim against the Tribunal. That application has subsequently been renewed. As regards the claim against the Lord Chancellor, he adjourned the application for permission to an oral hearing.
  5. I have now heard oral argument in respect of the application for permission against both defendants and this is the Court's decision on permission.
  6. The relevant legal framework
  7. To set the facts in their context, I refer to the relevant legal framework at the outset.
  8. Mental Health Act 1983
  9. Under section 71(2) of the Mental Health Act 1983, the Secretary of State must refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal within the last three years.
  10. Legal Aid Sentencing and Punishment of Offenders Act 2012 ("LASPO")
  11. The statutory framework for the provision of legal aid is at the heart of this application and its provisions are of central importance.
  12. Part 1 of LASPO is entitled "Legal Aid". Section 1 is headed "The Lord Chancellor's functions" and set outs both those functions and the definition of "legal aid". It provides:
  13. i. "(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.
    (2) In this Part 'legal aid' means—
    (a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid), and
    (b) services consisting of advice, assistance and representation required to be made available under section 13, 15 or 16 or paragraph 4 or 5 of Schedule 3 (criminal legal aid).
    (3) The Lord Chancellor may secure the provision of—
    (a) general information about the law and the legal system, and
    (b) information about the availability of advice about, and assistance in connection with, the law and the legal system.
    (4) The Lord Chancellor may do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor's functions under this Part."
  14. Section 2 is headed "Arrangements" and provides as follows:
  15. i. "(1) The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor's functions under this Part.
    (2) The Lord Chancellor may, in particular, make arrangements by—
    (a) making grants or loans to enable persons to provide services or facilitate the provision of services,
    (b) making grants or loans to individuals to enable them to obtain services, and
    (c) establishing and maintaining a body to provide services or facilitate the provision of services.
    ii. …

    iii. (5) The Lord Chancellor may make different arrangements, in particular, in relation to—
    (a) different areas in England and Wales,
    (b) different descriptions of case, and
    (c) different classes of person."
  16. Arrangements entered into by the Lord Chancellor under section 2(1) have taken the form of contracts for the provision of legal aid services between the Lord Chancellor and approved providers.
  17. Section 4 is headed "Director of Legal Aid Casework" ("the Director"). It provides as follows:
  18. i. "(1) The Lord Chancellor must designate a civil servant as the Director of Legal Aid Casework ('the Director').
    ii. [...]
    (2) The Director must—
    (a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and
    (b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions.
    (3) But the Lord 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 the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case."
  19. Section 5 deals with "Delegation". Section 5(5) provides as follows:
  20. i. "(5) A direction given by the Lord Chancellor under section 4 about the carrying out of the Director's functions may, in particular, require the Director—
    (a) to authorise, or not to authorise, a person to carry out a function specified in the direction, or
    (b) to authorise, or not to authorise, a person specified, or of a description specified, in the direction to carry out such a function."
  21. Section 6 deals with authorisations given pursuant to delegation made under section 5.
  22. Sections 8 to 12 deal with civil legal aid. Civil legal services are defined in section 8. Section 9, which is important in this case, provides as follows:
  23. i. "(1) Civil legal services are to be available to an individual under this Part if—
    (a) they are civil legal services described in Part 1 of Schedule 1, and
    (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
  24. Section 12 makes further provision in relation to determinations by the Director, under section 9(1)(b) (and also under section 10). Section 12 provides as follows:
  25. i. "(1) A determination by the Director that an individual qualifies under this Part for civil legal services must specify—
    (a) the type of services, and
    (b) the matters in relation to which the services are to be available.
    (2) Regulations may make provision about the making and withdrawal of determinations under sections 9 and 10.
    (3) Regulations under subsection (2) may, in particular, include—
    i. [...]
    ii. (e) provision about conditions which must be satisfied by an applicant before a determination is made, [...]"
  26. Pursuant to section 12(2) to (6), the Lord Chancellor has made the Civil Legal Aid (Procedure) Regulations 2012 ("the Procedure Regulations") which make detailed provision for the making and withdrawal of determinations that an individual qualifies for civil legal services under sections 9 and 10. Amongst other things, those regulations make provision for what are known as "individual case contracts" - namely contracts for the provision of legal aid services in respect of an individual case. Whilst such contracts are concluded between the Lord Chancellor and the provider under section 2(1), the decision as to whether such an individual contract should be entered into is for the Director to make. Under the Procedure Regulations, the Director has this power in respect of certain kinds of legal services, but not in respect of others. In particular, there is no power to direct such an individual case contract in the case of legal representation for proceedings before the Tribunal under the Mental Health Act 1983: see, in this regard, Regulations 2, 21(2)(e)(i), 23(1) and (1A) and 31(5).
  27. The Tribunal Procedure (First Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008
  28. Rule 11 of the Rules provides as follows:
  29. i. "(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.
    ii. [...]
    iii. (7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where—
    (a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or
    (b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient's best interests for the patient to be represented."
  30. ECHR Articles 5(4), 6 and 8
  31. Article 5(4) ECHR provides that everyone who is deprived of liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
  32. Article 6 ECHR provides for the right to a fair trial both in relation to civil and criminal proceedings. Article 6(3) makes special provision for minimum rights in criminal proceedings, including, by Article 6(3)(c) "the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
  33. Article 8 ECHR confers the right to respect for private and family life.
  34. Background facts
  35. The background facts are as follows. The Claimant was found guilty of committing what are commonly known as the "Moors murders" in the 1960s. He has been detained since October 1965, a period of some 51 years. He has been detained for the past 31 years at what is now known as Ashworth Hospital
  36. The present case concerns the Claimant's representation at a three-yearly review under section 71(2) before the Tribunal.
  37. Mr Makin is a solicitor advocate and has acted for the Claimant for over 25 years. Over that time he has gained the trust and confidence of the Claimant. In the past the Claimant has declined to participate in similar reviews by the Tribunal.
  38. The Claimant's position is that he will only participate in the Proceedings if he is legally represented by Mr Makin and if Mr Makin is funded for doing so.
  39. On 25 September 2016, Mr Makin applied to the Director at the Legal Aid Agency ("LAA") seeking funding to represent the Claimant in the Proceedings at a hearing due to take place on 29 September 2016.
  40. On 26 September 2016, the Director refused funding on the basis that Mr Makin is not a provider contracted to the LAA for mental health work. There were existing, contracted, providers who could represent the Claimant. In that letter, the Director considered the position in relation to the grant of an individual case contract, but declined to issue Mr Makin's firm with an individual case contract, where there were a number of legal aid providers in the North West of England who hold legal aid contracts in the mental health category. The Lord Chancellor has pointed out that she does not accept that in the present case the Director has such a power to award an individual case contract under the Procedure Regulations.
  41. The Director's refusal in that letter has not been the subject of legal challenge.
  42. On 29 September 2016, the hearing before the Tribunal took place. In the course of that day, the Claimant, who had been resistant to participate at all, decided that he was willing to participate in the Proceedings if and only if Mr Makin represented him. Mr Makin then informed the Tribunal and the Tribunal adjourned the Proceedings in order to allow Mr Makin to make representations to the LAA. On 2 October 2016, Mr Makin made an express written application to the Tribunal to be appointed as the Claimant's legal representative pursuant to Rule 11(7)(a) of the Rules.
  43. The Tribunal's written directions
  44. In written directions dated 4 October 2016, the Tribunal gave reasons for the adjournment. I refer to those directions, but do not set them out in full.
  45. In summary, The Tribunal recorded that the Claimant was prepared to participate on condition that Mr Makin represented him. Mr Makin was content to do so, but only with the assistance of legal aid. Up until then he had been acting pro bono.
  46. The Tribunal stated that they strongly supported the LAA's policy decision to restrict legally aided representation to those on the accredited panel, and did not know whether the LAA had any discretion to depart from this policy if the exceptional circumstances of a unique case warrant it.
  47. They went on to express the view that, if it is possible, then they considered that it would be in the interests of justice for the Claimant to have legal representation paid for from public funds. They believed that this particular patient would not engage in the Proceedings without the lawyer of his choice and that "this is a totally unique case, unlikely to set any precedents". They would be greatly assisted by the Claimant (amongst others) being legally represented.
  48. As regards Rule 11(7)(a), the Tribunal continued in its written directions as follows:
  49. i. "Mr Makin has asked the tribunal to consider appointing him as the patient's representative under rule 11(7)(a), and because it is so clearly in the patient's best interests, and in the interests of justice, for the patient to be legally represented.
    ii. We do not think that we should formally make any such appointment without knowing whether or not an exceptional case for legal aid funding has received favourable consideration. If we made such an appointment, and funding was declined, we would have named a person as a representative who was then unable to act, and without there being any realistic alternative - given that, in our view, there is no other lawyer that this patient would now accept.
    iii. For this reason, therefore, we make no formal appointment but we can and do indicate that, if an exceptional case for funding could be made, we would be very content to recognise Mr Makin as the patient's representative under Rule 11(1)."
  50. This is the decision of the Tribunal challenged by this application.
  51. The application to the Lord Chancellor
  52. On 6 October 2016, Mr Makin wrote to the Lord Chancellor, inviting her to make a grant or loan pursuant to section 2 of LASPO to enable Mr Makin to represent the Claimant at the Tribunal. The Lord Chancellor was also asked to give guidance of a general nature pursuant to section 4 of LASPO. Mr Makin asked the Tribunal to exercise statutory discretionary powers on the basis of the Tribunal's description of this being a "totally unique case".
  53. On 3 November 2016, the Lord Chancellor declined the request for funding, stating as follows:
  54. i. "We do not consider the grant you have requested under section 2 would, in the circumstances of this case, be an appropriate arrangement. Section 2(1) of LASPO enables the Lord Chancellor to make such arrangements as she considers appropriate for the purposes of carrying out her functions under Part 1 of LASPO. The Lord Chancellor's primary function with regard to legal aid is to secure that legal aid is available in accordance with Part 1 (see section 1(1) of LASPO). Arrangements made under section 2 must therefore be consistent with the legal aid scheme established under Part 1 and all secondary legislation made under it.
    ii. The Lord Chancellor has made arrangements under section 2 that are appropriate for the purpose of carrying out the Lord Chancellor's functions under section 1(1) of LASPO to secure that civil legal aid is available in accordance with Part 1 of LASPO and secondary legislation made under it. Those arrangements take the form of contracts with providers of civil legal services.
    iii. Applications for civil legal services must be made to the Director of Legal Aid Casework in accordance with the procedures set out in the Civil Legal Aid (Procedure) Regulations 2012. Determinations in relation to making available civil legal services are the responsibility of the Director of Legal Aid Casework. It is for the Director of Legal Aid Casework, not the Lord Chancellor, to determine whether an individual qualifies for civil legal services in accordance with Part 1 (see section 9(1)(b) of LASPO). In accordance with section 4(4) of LASPO, the Lord Chancellor must not give a directional guidance to the Director in relation to an individual case."

  55. The Claimant's Grounds
  56. The Claimant's case in summary is as follows. The Tribunal wishes to have the Claimant's participation in the Proceedings. The Claimant has said that he will only appear if he can be represented by Mr Makin. If that cannot be achieved, he will not participate. The Tribunal has made it plain that this is a unique case. The Director has refused funding. The Lord Chancellor refuses to give general guidance about exceptional cases and refuses to make a grant or loan to pay for legal representation. As regards the Tribunal, it has failed to appoint Mr Makin as the Claimant's legal representative under Rule 11(7)(a), notwithstanding the Claimant's request made through Mr Makin for them to do so. The Claimant submits that the Gordian knot should be cut by the grant of declaratory relief requiring a grant of funding and/or direction by the Lord Chancellor and a Rule 11(7)(a) appointment by the Tribunal.
  57. The Lord Chancellor's case, in essence, is that both direct funding by her, in circumstances where the Director has rejected the application, and any direction or guidance given by her to the Director, would be inconsistent with the LASPO legal aid framework and would be ultra vires.
  58. The Tribunal's case is that it does not have an obligation to provide funding for a lawyer appointed under Rule 11(7)(a); the relevant body to provide funding is the LAA. Its decision not to appoint was rational. If exceptional funding is forthcoming, then Mr Makin can be appointed under Rule 11(1); and, if it is not, any appointment under Rule 11(7)(a) would have been pointless.
  59. Test on permission
  60. On these applications for permission, the issue for this Court is whether the Claimant has raised an arguable ground or grounds for judicial review which have a realistic prospect of success. The Claimant contends that the grounds put forward are at least arguable; the Lord Chancellor and the Tribunal each contend that the grounds are unarguable and so permission should be refused.
  61. I turn to consider the arguability first of the case made against the Lord Chancellor and then the case made against the Tribunal.
  62. The claim against the Lord Chancellor
  63. As regards the Lord Chancellor, the Claimant identifies four relevant decisions in its claim form:
  64. (a) The decision of the Lord Chancellor not to make a grant or loan under section 2(2)(a) of LASPO for the purposes of providing legal representation by Robin Makin for the Claimant in [the Proceedings];
    (b) The decision of the Lord Chancellor not to make a different arrangement pursuant to section 2(5) of LASPO;
    (c) The decision of the Lord Chancellor not to give any Direction or Guidance under section 4 of LASPO; and
    (d) The failure of the Lord Chance to exercise her statutory powers so as to facilitate the representation of the Claimant by Robin Makin in [the Proceedings].
  65. In addition, the Claimant relies upon Articles 5(4), 6 and 8 ECHR in making his claim.
  66. In the light of the arguments made, the Claimant's case has two aspects: the first in relation to powers under LASPO, and the second arising under the ECHR.
  67. (1) The claims under LASPO
  68. As regards LASPO, the Claimant contends that the Lord Chancellor has unlawfully fettered her discretion by refusing, in the circumstances of the present case, to consider exercising the following powers under LASPO:
  69. (a) Her powers under section 2(2)(a) and (b) to make a grant or loan to enable the provision, or the obtaining, of services - in this case to enable funding for Mr Makin's legal services;
    (b) Her power under section 2(5)(b) or (c) to make a "different arrangement" in relation to different descriptions of case or different classes of person; and
    (c) Her powers under section 4(3)(a) and (b) and/or 5(5) to give a direction or guidance to the Director - here, a direction or guidance to enable funding in the present case.
  70. Under these provisions of LASPO, the Lord Chancellor has residual powers to make or facilitate the making of grants of public funding for legal services outwith the primary scheme for legal aid administered by the Director.
  71. As regards section 2, whilst that primary scheme for legal aid has been set up under section 2(2)(c), that has not exhausted the Lord Chancellor's powers under subsections (a) and (b) of section 2(2), nor the specific power to make a different arrangement under section 2(5)(b) and (c). As to the latter provision, the Claimant contends that the relevant description of case or class of person is any case where the Tribunal's view is that the person should have a lawyer of his or her own choice.
  72. As regards section 4, the Claimant submits that the Lord Chancellor should have considered whether to give a direction or guidance to the Director in the following terms:
  73. i. "That legal aid should be granted in any case where the Tribunal has made or is prepared to make a direction under Rule 11(7)(a) for the appointment of a legal representative in a situation where representation in the interests of justice is required, where the Tribunal has the power to appoint a legal representative at the request of the patient and the patient has indicated that he wishes the Tribunal to appoint a legal representative for him."
  74. The Claimant accepts that such a direction or guidance has to apply to any and all cases falling within this description. It is not permissible to give such a direction or guidance which applies only to the Claimant's case: see section 4(4) of LASPO.
  75. As regards section 5(5), the Claimant submits that the Lord Chancellor could have directed the Director to authorise the Tribunal itself, in a case where it decides that an individual should be entitled to a lawyer of his own choice, to carry out the grant of legal aid funding on behalf of the Director.
  76. The Lord Chancellor submits in response that she has none of the powers contended for and that to have acted as the Claimant suggests would have been ultra vires. The Claimant's case, she submits, is therefore bound to fail.
  77. Analysis
  78. The starting point is that the Director has refused to grant legal aid under the legal aid scheme, because Mr Makin does not have a relevant providers' contract. That refusal has not been challenged. Further, there is no challenge to the Procedure Regulations.
  79. The issue is whether, in such a situation, the Lord Chancellor has residual powers, and, if so, what those powers are.
  80. Section 2 LASPO
  81. As regards section 2 - both subsections (2) and (5) - the Lord Chancellor's powers are conferred and thus must be exercised, "for the purposes of carrying out the Lord Chancellor's functions under this Part": see section 2(1). The words "in particular" in section 2(2) confirm that the powers there stated are subject to the same limitation as that in section 2(1).
  82. Part 1 of LASPO is entitled "Legal Aid". The Lord Chancellor's functions under Part 1 of LASPO are to be found in section 1. The principal function set out in section 1(1) is to "secure that legal aid is made available". (The remaining functions in section 1(3) are not relevant for present purposes).
  83. The term "legal aid" is defined in section 1(2), and for present purposes "legal aid" means "civil legal services required to be made available under section 9". Neither section 10 nor Schedule 3 paragraph 3 apply in the present case.
  84. Section 9 defines when civil legal services are required to be made available. Two conditions must be satisfied: first, that the services in question fall within the services described in Part 1 of Schedule 1. In the present case this condition is satisfied.
  85. The second condition is that the Director must have determined that the individual qualifies for the services under Part 1 of LASPO. In this way, the primary legislation provides that it is the Director who determines whether civil legal aid is available. In the present case, the second condition is not satisfied: the Director has not determined that the Claimant qualifies for services; in fact, he has decided to the contrary.
  86. Thus the provision of services by Mr Makin are not required to be made available under section 9 and those services cannot amount to "legal aid" as defined in section 1(2)(a) of LASPO. It therefore follows that the Lord Chancellor has no power under any of the provisions of section 2 of LASPO to provide funding for those services, since to do so would not be for the purpose of carrying out her section 1(1) function of securing "legal aid". As explained above, this limitation applies as much to section 2(5) as it does to section 2(2).
  87. A central part of the Claimant's case under section 2 is based on the premise that the scheme for civil legal aid has been established by virtue of the exercise of the Lord Chancellor's power under section 2(2)(c) and that the powers under subsubsections (a) and (b) of section 2(2) are residual and are intended to operate outside "legal aid". This premise is incorrect. The scheme for legal aid has not been established by the exercise of powers under section 2(2)(c); rather, that scheme is established by the provisions of LASPO itself and regulations made under it.
  88. Finally, the Claimant seeks to rely upon section 1(4) which gives the Lord Chancellor a general ancillary power. However, that power is similarly limited to the Lord Chancellor's functions under Part 1 and does not confer a power to provide funding for services which are not "legal aid".
  89. For these reasons, the Claimant's case on section 2 of LASPO is unfounded and unarguable.
  90. Section 4 LASPO
  91. Any direction or guidance given by the Lord Chancellor under section 4(3) must relate to "the Director's functions under this Part". Those functions include, relevantly for present purposes, the Director's function of making determinations under section 9(1)(b). In turn, that function is to be carried out by the Director in accordance with section 12 of LASPO and regulations made under section 12(2), which include the Procedure Regulations, made by the Lord Chancellor and laid before Parliament. The Procedure Regulations establish the circumstances and manner in which funding for civil legal services of the type which arise in the present case can be made available by the Director.
  92. In this way, directions or guidance from the Lord Chancellor under section 4(3) of LASPO must be confined to the carrying out of the Director's functions as circumscribed by LASPO and regulations made under it.
  93. A direction or guidance by the Lord Chancellor to the Director to determine that an individual qualifies for services in circumstances other than those provided for in the Regulations is not a direction about the carrying out of the Director's functions under Part 1 of LASPO. To give such a direction or guidance would give the Lord Chancellor the power to bypass the detailed scheme established by sections 9 and 12 and the Procedure Regulations. It would be a direction to the Director to act outside his functions established under the scheme.
  94. In this regard, I refer to the judgment of Lord Dyson MR in In re K and another [2015] 1 WLR 3801 at paragraph 31, where he stated that LASPO provides a comprehensive code for the funding of litigants whose cases falls within the scope of the scheme. Here, the Claimant's case falls within the scope of that scheme, albeit that under the rules of the scheme the services of Mr Makin do not qualify.
  95. Furthermore, a direction or guidance in the terms suggested would, in effect, take the decision about the grant of legal aid out of the hands of the Director and put it in the hands of the Tribunal. The detailed and comprehensive rules in LASPO do not make provision for the courts to make such determinations in relation to civil proceedings. By contrast, in criminal proceedings there is an express power for the courts to determine whether an individual qualifies for representation.
  96. For these reasons, the Lord Chancellor has no power, under section 4(3) of LASPO, to make a direction or give guidance in the terms sought by the Claimant. Further, since the Lord Chancellor's power, in section 5(5) of LASPO, to require delegation by Director arises only in the context of making of a section 4 direction, it follows that in this case there is also no power to require the Director to authorise the Tribunal to act as his delegate.
  97. For these reasons, the Claimant's case under section 4 of LASPO is unarguable.
  98. (2) European Convention on Human Rights
  99. As regards the ECHR, the Claimant contends that, by a combination of Articles 5(4) and 6(3)(c) and the jurisprudence of the European Court of Human Rights, in this case there is a right under the Convention to public funding for legal representation of a person's own choosing and, under section 3(1) of the Human Rights Act 1998, LASPO has to be read and given effect to in a way which is compatible with that right.
  100. The issue here is whether a person has a right under the ECHR, and in particular under Article 5(4), to a publicly funded legal representative of his or her choice in circumstances such as the present.
  101. Under established authority, in civil proceedings there is no absolute right under Article 6(1) to publicly funded representation, but, depending on the facts of any particular case, such a right may well arise: see In re K (above) paragraphs 48 to 50.
  102. Secondly, in criminal proceedings, under Article 6(3)(c), there is, in certain circumstances, a right to publicly funded representation by a lawyer of choice. That right is not absolute but is subject to certain limitations, and in particular subject to the test of the interests of justice: see Croissant v Germany (1993) 16 EHRR 135 at paragraphs 29 to 30.
  103. Thirdly, under Article 5(4) ECHR, in proceedings concerning review of compulsory detention on grounds of mental health, there is a right to legal representation: see Megyeri v Germany (1993) 15 EHRR 584 at paragraphs 22 and 23. At paragraph 22(c), the European Court of Human Rights pointed out that judicial proceedings covered by Article 5(4) need not always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. At paragraph 23, the Court addressed the particular case of detention on grounds of commission of criminal offences, stating that, absent special circumstances, the person should "receive legal assistance".
  104. Thus neither the provisions of the ECHR themselves, nor any case law authority, supports the proposition that in civil proceedings, and in particular in proceedings relating to detention on grounds of mental health, there is a right to publicly funded representation for a lawyer of choice. I do not accept the Claimant's contention that the judgment in Megyeri, either at paragraph 23 or otherwise, warrants the extension of the special position relating to criminal proceedings under Article 6(3)(c) to proceedings such as the present.
  105. Accordingly, the Claimant's case that the Lord Chancellor's powers under LASPO are to be interpreted so as to give effect to a right to free legal representation by a lawyer of choice in Tribunal proceedings under Articles 5(4), 6 or 8 ECHR is unarguable.
  106. The Claim against the Tribunal
  107. The Claimant contends, first, that having concluded that it would be assisted by the Claimant being represented by Mr Makin, the Tribunal ought to have exercised its powers to appoint Mr Makin as legal representative under Rule 11(7)(a) of the Rules; and, secondly, that the making of such an appointment would of necessity require public funding (even if outside the scheme of legal aid) by virtue of Article 5(4) ECHR, as interpreted in the judgment in Megyeri.
  108. In refusing permission for this claim on paper, Ouseley J stated as follows:
  109. i. "The Tribunal has no power to grant funding, which is what the real issue is. Even if it could have appointed him as the representative, that would not have empowered it to require funding, nor would it have obliged the First Defendant [the Lord Chancellor] to take any of the steps sought, nor would it have imposed any obligation to consider whether to do so, unless the Claimant is right that the First Defendant has misunderstood her powers or fettered them. The Tribunal is an irrelevant defendant. No relief sought will advance public funding and no refusal or relief will hinder it."
  110. It is common ground that the Tribunal itself has no power to grant funding. The central point here is whether there can be any connection between an appointment by the Tribunal under Rule 11(7)(a) and the grant of funding by the Lord Chancellor. In his grounds for renewal, the Claimant has now identified that connection as being his asserted entitlement to public funding for Mr Makin under Article 5(4) ECHR, with that funding to be provided by the Lord Chancellor. However, for the reasons I have already given, the case of Megyeri does not establish any such entitlement under Article 5(4).
  111. I agree with the reasoning of Ouseley J. The Claimant's further argument based on Article 5(4) does not overcome the obstacle to the Claimant's case which he identified. No purpose is served by the claim against the Tribunal. That claim is unarguable.
  112. Conclusions
  113. For these reasons, I conclude that the Claimant's claims against the Lord Chancellor and against the Tribunal do not have a realistic prospect of success.
  114. Permission to apply for judicial review of the decisions of the Lord Chancellor and of the Tribunal is refused.
  115. MR ENGELMAN: My Lord, we have an application on our side. We ask for permission to appeal your Lordship's judgment to the Court of Appeal. Unfortunately, because of the complexity of the judgment, it has not been very easy to assimilate the detailed reasoning of your Lordship, and I would like a little time to put in submissions on that.
  116. MR JUSTICE MORRIS: Can I make an observation on that? I am not sure that this application should be made to me. I am under the impression that such an application should be made straight to the Court of Appeal. The reason being -- I do not know whether counsel for either of the defendants has any observations, and particularly if you need time to consider -- but if you go to 52.15 of the White Book it makes special provision for appeals against the sort of decision I have just taken, and I am just going to turn it up if you just bear with me a moment. It is on page 1715 of Vol I, and it is worth also at the same time looking at 52.3. Essentially 52.3, which is the general provision about permission, provides that an application for permission -- I am just turning it up. It is on page 1670. "An application for permission to appeal" -- this is 52.3(2) -- "may be made (a) to the lower court at the hearing at which the decision to be appealed was made; or (b) to the appeal court in an appeal notice". That is the general rule.
  117. There is then express provision in 52.15(1), which says, "Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal". There is then a note at 52.15 which says at the bottom, "Rule 52.15 modifies the general provisions about permission to appeal 52.3 in relation to judicial review appeals." Now, the use of the word "may" means the position is not entirely clear, but my understanding is that in general on oral renewals where there is a refusal the permission applications go straight to the Court of Appeal. I do not know whether you have any observations on that?
  118. MR ENGELMAN: My understanding is, with respect, to the contrary: the word "may" implies a discretion it must do, and there is nothing in 52.15 which cuts down(?) the ambit of 52.3.
  119. MR JUSTICE MORRIS: Except that of course in relation to 52.3 they are both "mays" as well. So the "may" for the lower court is cut out, but there we are. I do not know, Mr Birdling, whether you have view or experience to impart on this point?
  120. MR BIRDLING: My Lord, not directly, no, save that my understanding accorded with your Lordship's, although I accept that the presence of the word "may" --
  121. MR JUSTICE MORRIS: Your understanding is the same as mine: that generally these applications go straight to the Court of Appeal?
  122. MR BIRDLING: Yes, although I accept your Lordship's observation about the use of the word "may". It is not entirely clear. Perhaps, in terms of being practical, I will of course ask you to refuse permission to appeal on the basis that there is no realistic prospect of success --
  123. MR JUSTICE MORRIS: Yes, out of an abundance of caution, if it needs to be made here I should refuse it.
  124. I do not know if you have any observations?
  125. MISS HAYWARD: My Lord, I have no further observations.
  126. MR JUSTICE MORRIS: Do you have anything else?
  127. MR ENGELMAN: The only other point I raise is the question of time limits for the appeal to the Court of Appeal. Under the rules it is seven days. I think that is in 52.4, from recollection.
  128. MR JUSTICE MORRIS: It might be helpful if you had a copy of the White Book. Does somebody have a spare copy of the White Book they could assist Mr Engelman with?
  129. MR BIRDLING: I have a copy. (Handed).
  130. MR JUSTICE MORRIS: Yes, it is seven days.
  131. MR ENGELMAN: It your Lordship has a discretion to extend time I would be grateful if he exercises it. I am sorry to present to the court the conundrum.
  132. MR JUSTICE MORRIS: That is all right.
  133. MR BIRDLING: I am sorry, I do not have a White Book.
  134. MR JUSTICE MORRIS: Can we have enough White Books around the court, please? (Pause).
  135. MR ENGELMAN: The court always has a discretion under rule 3 to extend or abridge time.
  136. MR JUSTICE MORRIS: Yes, although of course if I do not have power to grant permission, I am not sure whether I have power to extend time. But anyway, there we are. I would hope, depending on the shorthand writer, you should be able to get a transcript of this. I am not putting any pressure on the shorthand writer, but the sooner it is able to be done I will approve a transcript.
  137. MR ENGELMAN: That would be very helpful, thank you.
  138. MR JUSTICE MORRIS: On the permission to appeal, I am going to decline. The order will be that, if an application is properly made to me it is refused on the grounds that, having found that the case is unarguable then it follows, I think, that there is no realistic prospect of success on an appeal. I will give you, I think -- how much time are you looking for? Because I am not minded to give you a lot.
  139. MR ENGELMAN: 14 days.
  140. MR JUSTICE MORRIS: Do you have any observations on that?
  141. MISS HAYWARD: Can I just clarify whether permission is sought as against both defendants?
  142. MR JUSTICE MORRIS: I presume it is?
  143. MR ENGELMAN: It is both defendants.
  144. MR BIRDLING: I am entirely neutral, but I suspect my learned friend --
  145. MR JUSTICE MORRIS: Does the Tribunal have anything to say about extension of time? I am looking at CPR 52.15(2)at page 1715, which is the time limit for applications for permission to appeal against a refusal of permission to apply for judicial review. The trouble with that, in a way, is that that is an application in accordance with paragraph 1, is it not, and that is an application to the Court of Appeal. Subject to anything the Tribunal has to say, I am sympathetic to extending time to 14 days, but I want to make sure that I have power to do it.
  146. MISS HAYWARD: No observations.
  147. MR JUSTICE MORRIS: Fine. General power to extend the time limit.
  148. MR BIRDLING: My Lord, I certainly would not be suggesting that you do. At the moment I am not entirely sure that you do have that power, for the same reason that I was not sure that you had the power to grant permission to appeal.
  149. MR JUSTICE MORRIS: I think it may be that you may have to apply to the Court of Appeal.
  150. MR BIRDLING: I am not sure. There is a general rule that says that in a normal appeal the court does have the power to extend the time.
  151. MR JUSTICE MORRIS: Yes, it is 52.3, somewhere, is it not?
  152. MR BIRDLING: It is also 52.6, which is unhelpful to the suggestion that there is --
  153. MR JUSTICE MORRIS: You see that is unhelpful, you are right. But there is a power generally to extend time for --
  154. MR BIRDLING: It is for filing an appellant's notice.
  155. MR JUSTICE MORRIS: One always makes those orders when there is consequential hearings and the time for appeal.
  156. MR BIRDLING: 52.4 is the general power. I think 52.4 might be the answer, my Lord, because that appears to say where an appellant's notice is required, which it would be here.
  157. MR JUSTICE MORRIS: Wait a minute. (Reads). Yes 52.4(2)(a).
  158. MR BIRDLING: The difficulty, of course, is that this refers to a different time period to the explicit time period which applies in respect of judicial review appeals under CPR 52.15. So for myself at present, I say this to assist the court and also to assist the claimant, because of course one would not want to be in a position where the civil appeal office did not accept that --
  159. MR JUSTICE MORRIS: I do wonder whether, because 52.4 -- yes.
  160. MR BIRDLING: I can tell you my experience on substantive judicial review applications where permission has been granted and has proceeded to a hearing, but that is of course entirely different.
  161. MR JUSTICE MORRIS: Open to the first instance judge.
  162. MR BIRDLING: Open to the first instance judge.
  163. MR JUSTICE MORRIS: Yes, but that is because it is not within 52.15.
  164. MR BIRDLING: Quite.
  165. MR JUSTICE MORRIS: Therefore the normal time -- I am sympathetic to the extension. I do not want to put you in a difficult position, though, because if in fact I do not have power and you do not apply until the 14 days, you will have to apply for an extension from them, will you not?
  166. MR ENGELMAN: Yes.
  167. MR JUSTICE MORRIS: You might be better finding out from them sooner rather than later.
  168. MR ENGELMAN: The trouble is that with seven days, by the time we apply for the extension we may as well --
  169. MR JUSTICE MORRIS: But you can apply for an extension out of time, can you not?
  170. MR ENGELMAN: Yes, you can.
  171. MR JUSTICE MORRIS: Is it possible for me to give an indication that, if the court has power to extend, time will be extended? I am not at the moment sure that that does apply.
  172. MR BIRDLING: No, my Lord, quite. I would be concerned for myself to affiliate the first defendant with any suggestion that the court had a power to do something that I was not satisfied that it had. Again, I say the first defendant is neutral on the substantive application.
  173. MR JUSTICE MORRIS: I understand.
  174. MR BIRDLING: Perhaps just one other point to draw your attention to in the White Book is the commentary, which is page 1716, under 52.15.6, which refers to the fact that -- because there is this ambiguity may have been corrected.
  175. MR JUSTICE MORRIS: Can I just read that? "The time limit for applying for permission to appeal" so this is for permission to appeal against a refusal of permission "are stated in 52.15(2)". Okay. That provision was clarified. The principles governing the grant of an extension are set out in the notes to 52.6, is that not right? 52.6, which is a variation to the Appeal Court, and not to 52.4.
  176. MR BIRDLING: My Lord, yes.
  177. MR JUSTICE MORRIS: So that does support the view that I do not have power, I think. So I am afraid I am not going to extend it and you are going to have to apply. I can express the view that if I was satisfied I had power, I would consider that this is an appropriate case for an extension to 14 days, but I think you had better go to the Court of Appeal and ask them about that. I suspect that if you apply on day 13 you can still apply for an extension and you can explain that, as I have just indicated. But I am not satisfied on the basis of this that I do have power; nor am I actually satisfied that it is really the application for permission normally comes to this court. So on that basis, the order will be that I will not extend time, but you have my observations.
  178. MR ENGELMAN: I am obliged.
  179. MR JUSTICE MORRIS: Yes, have I got anything else? No application for you?
  180. MR BIRDLING: No application.
  181. MISS HAYWARD: My Lord, yes, there is an application from the Tribunal for the costs of the acknowledgement of service only, which are in the sum of £1,730, which is comprised of £960 profit costs and £770 disbursements.
  182. MR JUSTICE MORRIS: I saw that figure.
  183. MISS HAYWARD: It is also in the acknowledgement of service itself. As you may recall, the order of Ouseley J recorded that in the event that a renewed application for permission was made against the Tribunal then costs should be dealt with at this hearing, given that the claimant had objected both to the principle and to the amount.
  184. As to the principle, I would refer you to R (on the application of Mount Cook) which sets out at paragraphs 76 a summary of the principles:
  185. i. "The effect of Leach, certainly in a case to which the Pre-Action Protocol applies and where a defendant or other interested party has complied with it, is that a successful defendant or other party at the permission stage who has filed an acknowledgment of service pursuant to CPR 54.8 should generally recover the costs of doing so from the claimant, whether or not he attends any permission hearing."
  186. On that, the defendant did send a pre-action response to the letter of claim on 14 November 2016 setting out the three primary grounds on which the claim was misconceived. As to the amount, our understanding is that the claimant will suggest or may suggest that there is a breach of the indemnity principle, in that the £160 an hour hourly rate claimed on behalf of the fee earner is more than the defendant is liable to be paid by the Tribunal. The relevant case on that is Re Eastwood, a Court of Appeal decision in 1975, which sets out the principle which is now pretty uncontroversial over the years:
  187. i. "It is the proper method of taxation of a bill in a case of this sort to deal with it as though it were the bill of an independent solicitor, assessing accordingly the reasonable and fair amount of a discretionary item such as this, having regard to all the circumstances of the case."
  188. Paragraph 2 does not apply. Paragraph 3:
  189. i. "It is a sensible and reasonable presumption that the figure arrived at on this basis will not infringe the principle that the taxed costs should not be more than an indemnity to the party against the expense to which he has been put in the litigation.
    ii. (4) There may be special cases in which it appears reasonably plain that that principle will be infringed if the method of taxation appropriate to an independent solicitor's bill is entirely applied..."
  190. We say this is not a special case. The £160 an hour fairly reflects the Government's costs in preparing the acknowledgement of service. I am not sure whether any issue was taken with counsel's fees.
  191. MR JUSTICE MORRIS: We will hear about that.
  192. MISS HAYWARD: I am not entirely sure on what basis the objection is now advanced, so if it is anything beyond that which I have anticipated.
  193. MR JUSTICE MORRIS: Why do I not hear from Mr Engelman. Thank you.
  194. MR ENGELMAN: I ask for the usual football pools order.
  195. MR JUSTICE MORRIS: You can tell me what the usual football pools order is. It is not a term I have used.
  196. MR ENGELMAN: This defendant is unlikely to be able to meet the costs. In those circumstances, the order usually made is the order is not to be enforced without permission of the court.
  197. MR JUSTICE MORRIS: Any other submissions on that?
  198. MISS HAYWARD: I am not sure whether the claimant is legally aided.
  199. MR JUSTICE MORRIS: The claimant is not legally aided.
  200. MR ENGELMAN: By definition not legally aided.
  201. MISS HAYWARD: Then it is a matter for the Tribunal whether they can enforce the case.
  202. MR JUSTICE MORRIS: Is there usually an order made not to enforce without the permission of the court in circumstances where the party is not legally aided? I have not come across that.
  203. MR ENGELMAN: In the circumstances of this case, it is very unlikely he will be able --
  204. MR JUSTICE MORRIS: That I entirely understand, and I am sure that the Tribunal will take that into account, but I am not sure that, given it is not legally aided, that I can make such an order. So no, I will make an order for costs of the second defendant of its acknowledgement of service only.
  205. Yes, Mr Makin?
  206. MR MAKIN: I think I had better address this. There is a very live and hot point about the breach of the indemnity principle. Ouseley J ordered that the appropriate form was to be served. The appropriate form requires a certification of the indemnity principle. I think this may be in what was section H that was filed, but there is undoubtedly an issue that it has been said in terms.
  207. MR JUSTICE MORRIS: Can you just give me a moment, please? (Pause). What he ordered was that the second defendant shall provide the N242 schedule breakdown of costs.
  208. MR MAKIN: Yes, and the N242 was provided. The point on the N242 is that there is a box that says -- and it is the whole purpose of N242 -- that says "I certify that the costs do not exceed what has to be paid", and that has been deliberately amended to suggest something that is really not the question. The MHRT have to pay at a particular rate to the Treasury Solicitor, Government Legal Department, what they are seeking, and I do not think there is any secret about it, they are seeking to claim a much higher rate than they actually have to pay. And in the Administrative Court guidance and in the Rules, the only order that can be made is in respect of costs reasonably incurred and reasonable in amount. And what they are seeking to do is to claim costs in excess of what have been incurred, and so this is quite a fundamental and complicated issue.
  209. MR JUSTICE MORRIS: I have not seen the N242, Mr Makin.
  210. MR MAKIN: So there is objection to that and they have not complied with an N242 in the terms that they ought to have done. So I think this is premature, unless and until they send a proper N242 for you to make a determination.
  211. MR JUSTICE MORRIS: Do I have this N242?
  212. MISS HAYWARD: No. I think there is the N260, I have, and I am not immediately sure what the N242 is.
  213. MR JUSTICE MORRIS: Right. Well, I think the answer to this is I will make an order for costs in principle and I am not going to make a summary assessment now. Is that not the answer? And then this can be sorted out.
  214. MR MAKIN: That is certainly possible.
  215. MR JUSTICE MORRIS: Ouseley J has said an N242, although whether he had in mind something --
  216. MR MAKIN: I think that description of the form as the N260, my learned friend will correct me, but it is an N260.
  217. MR JUSTICE MORRIS: Mr Makin, can you point to me in the document where they have not complied?
  218. MR MAKIN: Yes, there is a box --
  219. MR JUSTICE MORRIS: Can we all be working off the same document? What document have you got?
  220. MR MAKIN: It is called an N260, statement of the costs for summary assessment.
  221. MR JUSTICE MORRIS: I have it.
  222. MR MAKIN: It is about five or six pages long.
  224. MR MAKIN: Then if you go to the part on, I think, the penultimate page, on the normal form "The case is conducted by a fee earner who is an employee of the Crown of which the defendant's Government Department is also part. I certify this statement is both accurate and complete." It is that part. If one looks at a normal N260, the certification required is "I certify that the costs do not exceed what the paying party has to pay."
  225. MR JUSTICE MORRIS: Your assertion, and absent a certification, is that you are not satisfied that actually the Tribunal is paying the Government Legal Service £160 an hour.
  226. MR MAKIN: Yes, and in fact it has been said in terms that they were seeking a greater amount of costs than have actually been incurred, and if one looks at the very helpful Administrative Court guidance on judicial review there is a paragraph that basically makes it clear that the court cannot order more costs than costs have been incurred, and that is what this is about.
  227. MR JUSTICE MORRIS: I understand that point, but is this statement of costs from a standard form that is used in cases where it is the -- I call it the TS, but it is no longer called that -- is this a standard form where it is internal?
  228. MR MAKIN: It has been varied on various occasions. This is the first time I have seen this one, but they refused to have a certification (Inaudible) on a form N260, this is a very live and controversial (Inaudible) and this is not the only case that I have got with the Government Legal Service --
  229. MR JUSTICE MORRIS: I know there was correspondence on this, and to be perfectly honest I have not read it. It is not something that I think I want to resolve now, but I want to think of the best route for it to be resolved. It may be that it has to be dealt with in the way that Ouseley J envisaged, which was a sequence of exchange of written submissions.
  230. MR MAKIN: That may be the most suitable way.
  231. MR JUSTICE MORRIS: Rather than sending it off for detailed assessment. But I would like to understand the point a bit better, I would like you to explain it a bit better.
  232. I do not know what view you take on that?
  233. MISS HAYWARD: My Lord, essentially my understanding is that the position is that it is absolutely right that the hourly rates of the Government Legal Department lawyers are lower as between GLD and between the department, but what the costs reflects is --
  234. MR JUSTICE MORRIS: So it is correct that actually the reimbursement rate between the Tribunal and the Government Legal Department is lower than £160?
  235. MISS HAYWARD: Yes, but the overall costs of the Government of dealing with the matter is fairly reflected by the rate of £160. This was recently looked at in some detail in the Upper Tribunal.
  236. MR JUSTICE MORRIS: I am going to resolve this by, I think, dealing with it by way of submission, in the way that Ouseley J dealt with it. I personally would like, if we are starting to refer to authorities in the Upper Tribunal, I am not sure it is something I can resolve now. If it is a point of principle, obviously the argument will be sent to me, and if it can be resolved some other way so be it.
  237. MISS HAYWARD: My Lord, can I understand, the position is the order for costs is made in principle.
  238. MR JUSTICE MORRIS: (Inaudible) costs in principle, the question is the amount, is it not?
  239. MISS HAYWARD: Yes.
  240. MR JUSTICE MORRIS: And the basis upon which it should be. I think rather than send this off to detailed assessment for this amount, I think it is better to be resolved perhaps by me by the service of some written submissions each between the parties with relevant time dates.
  241. Now you, Mr Makin and Mr Engelman, may be busy in the next week, but I am going to take the course that Ouseley J took, which is to deal with it by way of submission.
  242. It seems to me that you should go first.
  243. MISS HAYWARD: Yes.
  244. MR JUSTICE MORRIS: I am looking along the lines of Ouseley J's order.
  245. MISS HAYWARD: Yes.
  246. MR JUSTICE MORRIS: You have served your N260, but explaining why this does not breach the indemnity principle.
  247. MISS HAYWARD: Yes. Seven days, and then a further seven days for the claimant to respond?
  248. MR JUSTICE MORRIS: Yes, unless people want to do it more quickly?
  249. MR MAKIN: I think we would certainly like 14 days because we have a lot of other things.
  250. MR JUSTICE MORRIS: You will have 14 days. If I give you seven days you get another seven days; that is two weeks. Mr Makin, to be fair, you are obviously well on top of this issue.
  251. MR MAKIN: It is in fact an issue that was discussed in another case this morning with the Treasury Solicitors. It is actually quite an important issue that would merit a High Court's judge's determination.
  252. MR JUSTICE MORRIS: I would be interested if anybody else is making any rulings on the point in open court, please let me know. I am going to give you seven, I am going to give you seven after that, and I am going to give the claimant a right to respond, but I think you ought to do that within four days.
  253. MISS HAYWARD: The second defendant a right to respond?
  254. MR JUSTICE MORRIS: Yes. It is your claim for costs. So the order is an order for the second defendant's costs of acknowledgement of service in principle, with submissions on assessment in accordance with that timetable.
  255. MISS HAYWARD: Yes. Thank you, my Lord.
  256. MR JUSTICE MORRIS: I think if you want to move quickly, the sooner I will get my note to the transcript writer, but between you if you can get a draft of the order agreed and sent over to my clerk as soon as possible, that would help things as well. I will direct a transcript out of public funds, if that is the right direction that is appropriate. I will, I think, keep the papers pending the issue on costs.

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