(1) GRANT OF LEGAL AID: THE EXCEPTIONAL CASES SCHEME
Introduction to a blog
This is very long for a blog; but it seeks to show that changes may be blowing through the legal aid scheme, especially with the levels of exceptionality required of applicants under s LASPOA 2012 s 10. The s 10 criteria depend solely on human rights issues, not some separate exceptionality criterion. Rights must be balanced; and the right to a fair trial guaranteed by the Convention must be carefully weighed in any exceptionality balance. This is especially so where court processes from the unrepresented individual are complex or are susceptible to challenge as ultra vires the primary statutory scheme (as with many family proceedings).
Exceptional case determination guidance
The Lord Chancellor has issued guidance to Legal Aid Agency decision-makers – The Lord Chancellor has issued guidance in relation to s 10: Lord Chancellor’s exceptional funding guidance (non-inquests)(undated) (‘the guidance’) – to assist them in determination of applications for ‘exceptional case’ funding under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) s 10; and a brace of cases – at least – has recently considered the meaning of exceptional case determinations. So how exceptional in this context is ‘exceptional’?
This article looks at the guidance under s 10 (which seems to have permitted only 8 grants of legal aid from a modest base of 111 family law applications in the first year of the 2013 scheme). Are practitioners permitting the EDC definition to be treated too restrictively (especially in family proceedings)? Is the guidance in law intra vires the Lord Chancellor and his Ministry of Justice draughtsman? That is to say, the politics of the Lord Chancellor and of his Government may reflect one version of s 10 (see the guidance); but is that truly a reflection of what Parliament intended or the European Convention 1950 requires?
‘Legal services’ under Legal Aid Sentencing and Punishment of Offenders Act 2012
An individual may obtain ‘civil legal service’ – referred to here as ‘legal aid’ – where they bring themselves within LASPOA 2012 s 9. This defines the availability of legal services generally as follows:
9 General cases
(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).
The effect of s 9 is to narrow the availability of civil legal aid substantially from that which was available before the coming into operation of LASPOA 2012 on 1 April 2013. A form of safety net slightly to soften the harshness of the new scheme is provided by LASPOA 2012 s 10. This enables legal aid to be granted where LAA has made an ‘exceptional case determination’.
10 Exceptional cases
(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) [applies only to inquests] is satisfied.
(2)This subsection is satisfied where the Director—
(a)has made an exceptional case determination in relation to the individual and the services, and
(b)has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3)For the purposes of subsection (2), an exceptional case determination is a determination—
(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
Legal aid will be available (subject to means testing and the merit of the case: s 10(2)(b)) if the LAA makes an exceptional case determination. Such a determination is defined by s 10(3) in terms of a breach of an individual’s Convention rights or that there is a risk of a breach of such rights. This is the limit of the definition provided by s 10(3); and it is that definition with which this article is concerned. Much of what is considered here applies generally in civil proceedings the emphasis at times will be on family breakdown law.
Under the heading ‘What is an Exceptional Case?’ LASPOA 2012 s 10 was considered by Coulson J in M v Director of Legal Aid Casework & Ors  EWHC 1354 (Admin):
 There was some debate before me as to what is meant by an “exceptional case” in Section 10 of LASPO. The defendant and the LC suggested that this meant not only a case that was outside Part 1 of Schedule 1 of LASPO, but also a case that was exceptional in its wider meaning, namely a case that was highly unusual or very much out of the ordinary. I do not accept that submission. It seems to me that, as a matter of statutory interpretation, Section 10 of LASPO is dealing with those cases which fall outside Part 1 of Schedule 1 of the Act. They are therefore exceptional, in that they are an exception to the general regime of the Act, which is that civil legal aid is only available for those cases falling within Part 1 of Schedule 1. In my view, there is no wider meaning (and certainly no magic) in the term “exceptional case”.
As the Court of Appeal confirms (below) ‘exceptional’ is applied to the fact that cases covered by s 10(3) come into the category there defined not because a case is ‘exceptional’ by any other criterion.
Lord Chancellor’s guidance
Para 5 of the guidance restates the terms of s 10(3)(a). The guidance goes on:
6. Section 10(3)(b) does not provide a general power to fund cases that fall outside the scope of legal aid. It is to be used for rare cases and provides that an exceptional case determination may be made where the risk of the breach of the rights set out in section 10(3)(a) is such that it is appropriate to fund.
7. The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. …
The emphasis above has been added. It will be the purpose of what follows to assess passages such as those in the light of the duties of decision-makers under a statutory scheme. It will be said here that it is the statute which defines the duties of the LAA decision-maker, not the guidance – especially if they are at variance; though this statement must be seen through the prism of such case law as there is to date.
(2) FETTERS ON THE DECISION-MAKER’S DISCRETION
Lawfulness of LAA decision-making
Where a decision-making body is statutorily entrusted with a discretion, as is the LAA decision-maker under s 10, it:
… must not disable itself from exercising its discretion in individual cases. It may not “fetter” its discretion. [If it does so] it may offend against either or both of two grounds of judicial review: the ground of legality or the ground of procedural propriety.
The principle of not fettering discretion does not prevent the issue of guidelines to decision-makers; but these must comply with the scope of the powers conferred by statute. Guidance may not limit the scope of the discretion beyond that which is anticipated by the statute. Lord Browne-Wilkinson explained this in R v Secretary of State for Department for the Home Dept exp Venables  AC 407,  UKHL 25 at 496-7:
When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future…. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.
However the policy must not be such as to prevent the decision-maker from acting within the scope of the statutory powers, and by preventing his or her from taking into account factors which are relevant to the case in question. Lord Browne-Wilkinson went on:
… the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed. (1995), para. 11.004 et seq., pp. 506 et seq.
Any guidance which enables a decision-maker to depart from it only in circumstances that are extraordinary or rare may ‘fall foul of the no-fetter principle as amounting to a blanket policy’. Guidance cannot be mandatory upon a decision-maker; though it must be an important factor in a decision-maker’s consideration of an application, as here under the statutory ECD scheme.
‘Rare’ cases: a fetter on discretion
The LAA guidance (at paras 6 and 7 above) seeks to narrow the scheme to being used ‘for rare cases’ (mentioned in both paras 6 and 7) and only for ‘the highest priority cases’. It introduces the limiting of grant of representation, so as to the refocus of the scheme on ‘limited resources’. This may be a fact in the political back-ground of the scheme; but it is not referred to as a criterion for grant in the Act. Is a decision-maker to be expected to make this direction part of his/her decision-making?
Each of the references in the guidance in paras 6 and 7 applies fetters to a decision-maker’s exercise of discretion as defined by s 10: there is no reference to these factors in s 10(2) and (3). Parliament does not seem to have contemplated – either in guidance or delegated legislation under the new scheme – that the Lord Chancellor would be permitted to fetter discretion in the way paras 6 and 7 assert.
Para 7 concludes:
… Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).
Paragraph 10 of the guidance goes on to assert that a grant of legal aid to avoid a breach under European Convention 1950 Art 6(1) ‘is very high’. The extent to which these references – paras 7 and 10 – are within the limitation on their powers which the Act contemplated.
The ‘overarching question’
At para 18 the guidance states how it sees the ECD scheme’s ‘overarching consideration’ in terms subjective to the author of the guidance. The overarching consideration for a decision-maker to consider is said to be (all emphases are as in the text of the guidance) as follows:
The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold.
The guidance follows the ‘overarching question’ in para 18 with the factors which a decision-maker should take into account. The guidance makes it clear that none of these factors ‘is necessarily determinative’. Each application must be decided on its individual facts (para 19). Factors for consideration include:
- The importance of the issues at stake (para 20)
- The complexity of the procedures involved (21)
- The complexity of the law or the evidence in question (21)
- The ability of the applicant to present or defend their case effectively without a lawyer (22)
- In the case of child applicants what role is being played by a litigation friend or CAFCSS (24)?
- In cases where the applicant lacks capacity what is the extent of lack of capacity (Mental Capacity Act 2005 s 2(3)) and is the applicant a protected party in terms of Civil Procedure Rules 1998 (25)?
Para 23 asserts that case workers should bear the following in mind in relation to the generality of EDC applications. Thus, it is said:
- there is no requirement to provide legal aid to ensure total equality of arms between an applicant and opponent, so long as each side is afforded a reasonable opportunity to present their case under conditions that don’t place them at a substantial disadvantage compared to the opponent;
- most courts and, in particular, tribunals are well used to assisting unrepresented parties in presenting or defending their cases against an opponent who has legal representation.
The propositions here advanced are controversial. It is unlikely that the author has spoken with judges or to lay justices (in the family court) who are confronted daily by litigants in person. What is said about tribunals (so far as it is relevant at all: legal aid is rarely available for tribunals) begs the whole question of all that s 10(3) is concerned with.
(3) LEGAL AID AND THE EUROPEAN COURT
Grant of legal aid: a European Court of Human Rights perspective
In JG Black LJ cites Muscat v Malta (2012) Application no 24197/10  ECHR 1601 as modern authority for the proposition that there is no obligation under European Convention 1950 to make legal aid available for all civil disputes.
Paragraphs 45 and 46 of Muscat deserve consideration by anyone applying under s 10 on grounds that procedures are complex, or otherwise querying their ability to present a case:
 The institution of proceedings does not, in itself, satisfy all the requirements of Article 6 § 1. The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings. It would be inconceivable for Article 6 § 1 to describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without guaranteeing the parties that their civil disputes will be finally determined (see Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003, and Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002-II).
So says the court access to the court must include the ability to see the case through to a ‘determination’: rules of evidence, case management and other procedural issues will arise here. There is no obligation to provide legal aid: the Court distinguishes between rights under Art 6(3) (criminal proceedings) and 6(1).
Muscat then goes on to break down the applicant’s entitlement into three components:
(1) That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case:
… However, despite the absence of a similar clause for civil litigation, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable to effective access to court, either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32)….
(2) Legal aid should be available – guaranteed – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1):
… In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (see, inter alia, Staroszczyk v. Poland, no. 59519/00, § 129, 22 March 2007;Siałkowska v. Poland, no. 8932/05, § 106, 22 March 2007; and Bąkowska v. Poland, no. 33539/02, § 46, 12 January 2010). An adequate institutional framework should be in place so as to ensure effective legal representation for entitled persons and a sufficient level of protection of their interests (ibid, § 47)….
(3) Active intervention to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’: could this include third parties (grand-parents etc in care proceedings)?
… There may be occasions when the State should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. It will depend on the circumstances of the case whether the relevant authorities should take action and whether, taking the proceedings as a whole, the legal representation may be regarded as “practical and effective”. Assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see, for example,Siałkowska, and Staroszczyk, both cited above, § 122 and § 100 respectively).
(4) EXCEPTIONAL CASE DETERMINATIONS AND FAMILY PROCEEDINGS
Procedure for family proceedings
Any applicant for ECD legal aid in family proceedings, in the context of exceptional cases and a fair trial, is entitled to draw to the attention of LAA to the fact that Family Procedure Rules Committee (FPRC) and those who administer the new family court scheme have made the procedure for family breakdown law appreciably more complex than it was pre-22 April 2014 (coming into operation of the family court). Litigants and prospective litigants are in an appreciably more difficult position than they were pre-April. Without legal representation they are by definition at a disadvantage which would have been appreciably less, earlier this year.
At each stage there is also the extent to which delegated and sub-delegated legislation is lawful, and – more troubling still – the need to ensure that judges know the new law. That subsidiary legislation is unlawful can be demonstrated from a number of sources; and that judges cannot keep up with the law – even with trained advocates in court with them – can be shown from a variety of case law. Anecdotal evidence is likely to illustrate these points more frequently; and depressingly so.
(1) Crime and Courts Act 2013 ss 75 and 76
Crime and Courts Act 2013 ss 75 and 76 delegate the making of Family Procedure Rules 2010 to FPRC. In particular Crime and Courts Act 2013 s 75(5) provides as follows:
(5)Any power to make Family Procedure Rules is to be exercised with a view to securing that—
(a) the family justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed.
Words like ‘accessible’ and ‘simply expressed’ are subjective. To Sir James Munby P who has signed off a bewildering variety of practice directions in the few days before 22 April 2014 and the introduction of his ‘cusp of history’ family court, these emissions will be relatively ‘simply expressed’. Had he paused to think that the majority of less well-off litigants will not be represented (subject to availability of EDC) – and if they are represented, it is not by someone of his sophistication – he might have realised that for most members of the public and for many lawyers the new schemes are by no means ‘simple’. For example, for application for a Children Act 1989 s 8 order (ie a ‘child arrangements’ better known to most people as custody or access), the accessibility to the courts are by no means simple. The litigant must have a reasonable knowledge of:
- Children Act 1989 Parts 1 and 2
- Children and Families Act 2014 ss 10, 13 and ##
- FPR 2010 Part 12 (most) and the majority of some ten practice directions
- FPR 2010 Parts 1, 3, 4, 5, 6, 20, 21, 23, 24, 25, 28, 33 (with appropriate practice directions)
- Parts of CPR 1998 (eg Part 44)
- Various case law
It is unlikely that generalist district judges and circuit judges, and lay justices and their legal advisers, will know the detail of most of the above: indeed it is clear from case reports that the more senior judiciary do not.
If the scheme is as complex – in real terms – as suggested above then there is a real question of the vires of what is being done (or not done, in many instances: disclosure is left in family proceedings entirely to the common law; in theory Civil Procedure Rules 1998 cannot apply, etc) as a whole. Certainly, vires apart, it may be thought that many cases by definition leave the system too complex for many family litigants (see guidance para 21: and references to ‘procedural’ complexity).
(2) The new family court: dubious vires
The new family court has produced a variety of new delegated and sub-delegated legislation, and local practice directions further to complicate matters. From an objective stand-point it is hard to guarantee a fair trial to any party to family proceedings where so many of the rules are of dubious vires.
For example Children and Families Act 2014 s 10 provides for family mediation information and assessment meeting (MIAMs). FPR 2010 Part 3 and an accompanying practice direction deal with MIAMs in terms, some of which are plainly ultra vires what is permitted in the statute. Many of the procedural provisions for all children proceedings are not in properly framed rules but in arbitrarily produced practice directions. As a matter of law practice directions should only guide procedure: see eg Secretary of State for Communities and Local Government v Bovale Ltd and anor  EWCA Civ 171.
Every litigant in family proceedings, were the Ministry of Justice to wish to ensure fairness, should guarantee anyone who wanted it, a lawyer who would check the vires of any provisions to which their application is subject.
(3) Alsatianisation of Family Procedure Rules 2010
It might be thought that – as was the case till March 2011 – all family proceedings, as civil proceedings, would be subject to the same procedural rules, as they are (mostly) to the same rules of evidence. But no. The present family proceedings administration insist that family proceedings should have increasingly separate procedural rules – even some rules of evidence are to diverge (see eg Children and Families Act 2014 s 13).
Thus though, as Munby LJ reminded us all, the common law applies equally to family as to other proceedings – family cases do not proceed in some legal ‘Alsatia’, he told us – in procedural terms the administrators of family justice (pre-eminent amongst them, the same Munby, now Sir James Munby P) are intent up Alsatianising family court procedures. Of itself this creates an unnecessary complexity for family breakdown litigants
Family law: ‘specific cases’
Of family proceedings specifically the guidance says, at para 43:
Where a case involves the determination of civil rights and obligations, caseworkers should consider whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings, having regard to the general factors described above.
It then goes on to point out matters of particular relevance:
- Are proceedings likely to be particularly emotive? But so are most family proceedings. This alone is unlikely to engage Art 6(1).
- Complexity is geared to Airey v Ireland (1979) 2 EHRR 305. As mentioned above an increasing spectrum of family cases involves real complexity thanks to the cross-currents of law, common law, delegated and sub-delegated legislation – and that some of the later is of increasingly dubious vires
- Legal and factual complexity
That family law by definition can be complex can be illustrated from the case of JG. With three silks, two barrister, five or six solicitors and three lady/lords justices in the case no-one noticed that the order made by the district judge which was the subject of the proceedings could not be made:
(1) Thanks to the fact that at the time (April 2008) CPR 1998 could not apply to family proceedings (CPR 1998 r 2.1(2)), then opinion (expert) evidence in family proceedings was governed by Rules of the Supreme Court 1965 Order 38. Under Order 38 there was no power in the court to make a joint instruction order; so the district judge could only have made the order the child sought. The Legal Services Commission refusal was based on an illegal order. (It can be seen that Black LJ is a little vague as to the pre-2011 power to make expert evidence directions (para : ‘nothing turns’ on the difference between old rules and new: no-one seems to have referred her to Order 38).
(2) There is no clear power in the court to order a party to pay funding expenses before a time when the court can make a costs order (Senior Courts Act 1981 s 51). If (1) above is correct the principles in FPR 2010 r 25.8(##) did not apply anyway; but if they did, they were probably ultra vires the rule-makers.
If the array of lawyers involved in JG can get it wrong – as they appear to have done – it it not likely that by definition a family proceedings case is likely to involve questions in every case about
- The vires of the rule in question in the proceedings
- The practice to be followed once the correct rule has been identified and that it is lawful has been established
(5) MERIT OF GRANT
Merit in family proceedings
It would be naïve indeed to imagine that in family cases the complexity of the new scheme, by definition, would bring a case within the terms of s 10(3)(b); but what this analysis may point up is that the increasing complexity of the new family court scheme will make things more difficult for litigants; and the vires of many of the provisions will not be tested, without expert legal advice. If their case has merit, and their means permit it, practitioners should bear in mind that complexity of process alone (see Muscat above) can justify legal aid.
Merit in proceedings which involve children
The JG case involved a child, and saw the Court of Appeal consider issues in terms of European Convention 1950; but there was no necessity in that context fully to define and sequence children’s rights. This will be needed in a genuine human rights case where the rights of children are engaged, whether it be in immigration ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4), housing or family proceedings.
The decision-maker must take full account of the proportionality balance and sequencing tests which a judge must undertake. These are not touched upon in the guidance. They are central to any human rights assessment where children’s rights are involved. Briefly the court will be required – and the decision-maker must therefore contemplate and give reasons in his/her decision for – to consider the interplay of any rights involved and of their comparative importance. In Re S (Identification: Restrictions on Publication)  UKHL 47 Lord Steyn spoke of the position where the values under the two articles are in conflict. Then, he said – and this has become the classic formulation of balancing test for competing rights – there must be an ‘intense focus on the comparative importance of the specific rights… in the individual case…’. The justification for interference, or the restriction of any right, ‘must be taken into account’ says Lord Steyn.
If it is in contemplation that a child’s rights will in fact be interfered with, those rights must be ‘sequenced’. To justify interference, says Lord Kerr says in two deportation/immigration cases (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4; H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25). These principles apply for child rights cases generally said the Supreme Court. Lord Kerr explained his ‘sequencing’ of decision-making as follows:
(1) First, the court must ask the question: has there been (or is there proposed to be) any interference with the Art 8 rights of the child?
(2) If so, what is the nature of the child’s rights engaged?
(3) What is the importance of those rights, relative to other rights engaged by the particular proceedings?
(4) What is the degree of interference with the child’s Art 8 rights (and see per Lord Steyn: in Re S, para , it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect’)?
(5) Whether the action proposed justifies interference with the rights engaged? In H(H) the proposal was that a parent should be extradited, and the court must consider in relation to a child, whether and to what extent the right to family life of the child was justifiably interfered with.
Each case is fact specific. Who are the children; who are the other parties; and what factors in the case justify any particular interference? Finally the court must assess the proportionality of interference once the rights have been defined. Proportionality in Convention jurisprudence is the counter-balance or check to what the court considers Convention rights require of it. It requires any public authority to justify the interference with a Convention right. The judge must show that the interference is proportionate to the aims which the judge in that case says that the interference is sought to achieve.
Procedural complexity is ‘exceptional’
Coulson J and Black LJ, both obiter, may be said to take a slightly different view of s 10; but both agree that it is a label to define the categories of representation referred to in s 10(3), not a term to define, for example, the narrowness of the scheme. Thus Black LJ in JG:
 … whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights.
Of itself procedural complexity is ‘exceptional’ because it threatens anyone but the most competent lawyer with the possibility of a trial which is not fair; and that engages Art 6(1); and that engages – as night follows day – Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)(b).
The rate of grant and only 111 applications suggests that practitioners are permitting the EDC definition to be treated too restrictively (especially in family proceedings). Theya re perhaps taking the Lord Chancellor’s guidance at face value without reflecting upon its vires and what it means in the context of what s 10(3) actually says.
So to return to the questions posed at the beginning: this article says that, yes, certain of the guidance – especially when seen in the context of Muscat – is unlawful to the extent that it fetters the discretion of LAA decision-makers. In many instances, especially where it is not within the terms of s 10, it does create fetters. In terms of merit: applicants are entitled to point to the complexity of the law, and especially the increasingly complicated procedures of family proceedings, to say that in increasing numbers of cases the law is too complex for parties – and for some judges – to be sure that an individual will have a fair trial without access to an experienced lawyer and advocate.
 De Smith’s Judicial Review 7th ed (2013) at 513
 De Smith at 522
 In M v Director of Legal Aid Casework & Ors  EWHC 1354 (Admin) Coulson J commented obiter on the ‘rare’ basis for assessment:  The other criticism is, of course, the LC’s reference to the risk of breach being “so substantial” that it is appropriate to provide civil legal aid. Mr Bowen QC’s criticism of that was that it set the bar too high. But that was based on his test of a “real risk” or a “real possibility”. For the reasons set out above, I have rejected that formulation and consider that, in the context of the LASPO regime, the test must be higher than that: something like “a significant risk” or “a very high risk” of breach. Therefore, I am wholly unable to say that the reference to “so substantial” is wrong or unlawful: on the contrary, it broadly chimes with my interpretation of Section 10(3)(b).
 The nn for this is given only as ‘De Haes and Gijsels v Belgium (1998) 25 EHRR 1’. This case (also De Haes and Gijsels v Belgium – 19983/92  ECHR 7) is difficult to see as authority for the proposition advanced for it by the LAA in the guidance: the case related to damages for defamation and the rights of the press. A more recent assessment of the current law in Muscat v Malta (2012) Application no 24197/10 (considered in JG at ).
 Richardson v Richardson  EWCA Civ 79