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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brady, R (on the application of) v The Lord Chancellor & Anor  EWHC 410 (Admin) (20 February 2017)
Cite as:  EWHC 410 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF IAN STEWART BRADY||Claimant|
|(1) THE LORD CHANCELLOR|
|(2) FIRST TIER TRIBUNAL (HEALTH, EDUCATION & SOCIAL CARE CHAMBER) MENTAL HEALTH||Defendants|
|(1) MERSEYSIDE NHS FOUNDATION TRUST|
|(2) SECRETARY OF STATE FOR JUSTICE||Interested Parties|
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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) 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").
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."
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.
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."
i. "(1) The Lord Chancellor must designate a civil servant as the Director of Legal Aid Casework ('the Director').
(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."
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."
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)."
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—
ii. (e) provision about conditions which must be satisfied by an applicant before a determination is made, [...]"
i. "(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.
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."
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)."
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."
(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].
(1) The claims under LASPO
(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.
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."
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."
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."
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."
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..."