SUPREME COURT; COSTS IN CARE PROCEEDINGS

For a second time in only a couple of years the Supreme Court has reviewed costs orders in care proceedings – Re S (A Child; Court of Appeal costs order) [2015] UKSC 20. Each time the result is much the same: that costs orders should only be made in children proceedings (whether care proceedings or otherwise) where a party’s behaviour has been in some way ‘reprehensible’ (Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317; para [26] in Re S); and not because eg the local authority could afford to pay where grand-parents were called upon to clear their name (as in Re T (Costs; Care Proceedings; Serious Allegations Not Proved) [2012] UKSC 36 [2013] 1 FLR 133); or because a father (who was not legally aided in appellate proceedings) was successful in the Court of Appeal (Re S).

The short point is that for costs orders in care proceedings the position is as other children proceedings: a party should not be discouraged by the fear of paying another party’s costs ‘from playing their part in helping the court achieve the right solution’ for the welfare of a child ([21]). Local authorities must not be in a worse position than other parties ([32]). The only exception to this general position, suggested Lady Hale (who gave the only judgement with which all others in the Court agreed), was on a ‘best outcome’ for the child ground in cases of ‘real hardship’ to the child’s family:

[33] … If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order a richer parent who has behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk.’

In children proceedings generally, as in care proceedings, subject to the narrow real hardship for the family ground, costs orders will be as rare in care proceedings as in other children proceedings.

OF VULNERABLE AND INTIMIDATED WITNESSES, AND CHILDREN

Hearing from children and vulnerable witnesses in the family courts: working group

Current procedural reforms in the family courts and the Court of Protection are looking in particular at three issues; though not necessarily with any real sense of the interrelation of the three:

• The treatment of ‘vulnerable witnesses and children’
• ‘Transparency’ (by which is meant the extent to which proceedings in the courts should be held in private); and
• Legal aid.

Each subject is interdependent and should be of concern to both courts. That which is of immediate concern to the courts’ administrators – who are also in many instances also the judges of the court – is that of ‘vulnerable [and intimidated] witnesses and children’. The two – or three even (as explained below) – separate subjects are bracketed together, though each raise different questions; and, surely, they require different solutions? For example where children are parties to proceedings legal aid will not be an issue; whereas for many ‘vulnerable’ individuals legal aid will by no means be guaranteed; and for ‘intimidated witness’ there may be a call for the Attorney-General to be involved.

A working group (chaired by two judges) set up by Sir James Munby P has recently reported on these two subjects: Report of the Vulnerable Witnesses and Children Working Group February 2015 (published in March 2015 by Judiciary of England and Wales). The Group accepted its own ‘conclusions’ (yes really – para [27]). It proposes a draft set of rule changes which it commends to the Family Procedure Rules Committee (‘FPRC’).

The interim report of the working group can be found at https://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ . My own response to that interim report is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ .

The report

The report combines judicial concerns in relation to children meeting judges in the family courts and – which is not necessarily the same thing (as the report stresses) – children giving evidence in court; and the need ‘to address the wider issue of vulnerable people giving evidence in family proceedings’. The report draws attention to practices in the criminal courts where – as Roderic Wood emphasised in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 – the rules and prevailing procedures are much more appropriate to children. It singles out the illuminating comments on children evidence of Lord Judge LCJ in R v Barker [2010] EWCA Crim 4 at paras [38] to [43]. (It is difficult to suggest a more helpful starting point for the Group’s work than what was said by Lord Judge.)

The report points out (para [10]) that ‘particularly in public law’ (sic) the adults as well as the children ‘are frequently “vulnerable witnesses”’ (a cross-reference is given here which leads nowhere’; yet no attempt is made in the text of the report or in the draft rule to define what is meant by this. For example reference is made (at para [13]) to the recent Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge; yet the issue in that case was not the particular vulnerability of a witness but the appropriateness of a judge cross-examining a witness for the father applicant and the funding of an advocate to carry out that examination for the court (Matrimonial and Family Proceedings Act 1984 s 31G(6)(b)).

Did the Working Group intend to look at the particular funding issues which Re K and H throws up? ‘Funding’ is touched upon as ‘a matter of concern and some controversy’ (para [20]). Its ‘ad hoc’ nature is said to be ‘unsatisfactory’. But no recommendations are made by the Group as to how funding controversies might be resolved in the particular instances which arise; and, for example, no reference to the role which the Attorney-General (looked to by Roderic Wood J in H v L) might perform in assisting the court.

The Group reviews the existing guideline for judges in seeing children and finds them to be flawed. They point out (para [24]) the importance of distinguishing between the fact that the judge is not intended to gather evidence; but should consider their wishes and feelings. So, says the Group, ‘There is a need for the evidence of children and young people to be put before the family court as it would be in criminal proceedings’ ([26]). The report concluded on this subject:

It is the view of the [Group: WG] that the Family Court has fallen behind the criminal courts in its approach to their evidence…. Those young people that the WG heard from do not expect, or even want, the judge to do as they say; they want to know that they have been listened to and this perceived (and in many cases actual) defect cannot be cured with by meeting the judge or tribunal alone if at all. To hear a child must mean to hear her or his evidence and if the child/young person is not going to give oral evidence there must be provision for their evidence to be heard as directly as possible without interpretation by the court appointed officers or others.

Of terminology: the Group preferred to retain its existing terms – ‘children’ and ‘vulnerable witnesses’, with addition to the latter of ‘intimidated witnesses’ ([30]). This means incorporating into any definition to what the proposals are intended to cover as a ‘witness’ includes a party, and may involve witnesses who are examined for the court (as in Re K and H). It will involve FPRC is a careful definition of terms (a question which the Group’s drafting has so far evaded: its draft rule has no definition of to what the rule is addressed and as to exactly when it will apply (para [35](v)).

Rule changes

Given the nature of the subject-matter the FPRC are urged to recall their pre-eminent statutory requirement (as set out in Courts Act 2003 s 75(5)): that their rule making powers should be used in such a way as to set out rules which ensure that ‘(a) the family justice system is accessible, fair and efficient, and’ that ‘(b) the rules are both simple and simply expressed’. Quite apart from its poor grammar, the present draft is not by a standard which most lay readers (and indeed many lawyers) would understand ‘simple or simply expressed’. For example, the long sentences seem to leave its own drafter confused; it does not define what is the meaning of the subject matter: namely (1) ‘vulnerable witnesses’, (2) ‘children’ (which will not be the same as the definition in Children Act 1989 s 105) and ‘intimidated witnesses’; and it leaves important matters vague ‘such other matters which appear to the court to be relevant’ (draft r 3B.1(3)(d)). (One of the great advances with the drafting of Civil Procedure Rules 1998 was short sentences and a number of one sentence rules. The drafting of the proposed Family Procedure Rules 2010 Part 3B goes back to an earlier unreconstructed period of rule drafting.)

It is sincerely to be hoped that the present drafters of the [35](v) will carefully reconsider their draft and reframe it with simplicity, clarity and aptness to the subject matter in mind. The words of Lord Judge LCJ at [38] in R v Baker (above) provide an excellent starting point.

LEGAL AID APPLICANTS 4 – LORD CHANCELLOR 1

Successful challenges on legal aid legislation

On the civil litigation side of the legal aid cases, I think the current decisions score is: Legal Aid Applicants 4 – Lord Chancellor (Legal Aid Agency) 1. The single Lord Chancellor score (the Rights of Women case (see below)) is awaiting an appeal hearing in the Court of Appeal; and two of the four are successful scores are Court of Appeal appeals. And these cases do not include Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 where His Honour Judge Bellamy sitting as a Deputy High Court judge ordered the Lord Chancellor to pay for an advocate to cross-examine a child witness for the court in children proceedings (said to be on appeal to the Court of Appeal); nor does it include the miscellaneous Presidential rants including Q v Q, Re B, Re C [2014] EWFC 31 and Re D (A Child) [2014] EWFC 39, (a case preceded by A Father v SBC and ors [2014] EWFC 6 Baker J and Re D (A Child) [2014] EWFC B77 HHJ Marshall). Impressive as is their rage, neither case brings a grant of legal aid any further either for the assistance of the litigant, or for the payment of the lawyer who wants to help.

The cases are as follows, with the first four being successful. Notes on these cases is followed by a short assessment of their significance in the fields of exceptional case determination (LASPOA s 10(3)); and of the important field – within that – of Airey principles (Airey v Ireland (1979) 2 EHHR 533) and a fair trial (European Convention 1950 Art 6(1)).

JG v Lord Chancellor and ors [2014] EWCA Civ 656 (on appeal from Re JG (a child by her guardian) v LSC and ors [2013] EWHC 804 (Admin) – the Court of Appeal reversed a decision of Ryder J (ahtw) and declared as unlawful the decision of the LAA to refuse to fund an expert’s report in children proceedings where the court had directed that it should do so. The decision is narrow, and confined to its own facts; but it is likely to be important for the comments of Black LJ in the area of exceptional case determinations for legal aid under LASPOA 2012 s 10(3) (especially taken together with Gudanaviciene (below)).

R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 – the Court of Appeal held that the Lord Chancellor’s Guidance, on grant of exceptional case determination funding was unlawful in certain respects. It made the gate through which an applicant must pass too narrow. The ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para [56]). Determining factors include: procedural complexity; ‘substantive legal issues’; what is at stake (in Gudanaviciene separation of the mother from her small child was in issue, and what then was the likely ability of the applicant to deal with her case). ‘It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases’ said the court; but it is not the law that legal services are required only in extreme cases.

R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin) – the Lord Chancellor’s inquests guidance to LAA case workers was ‘materially in error’ (para [19]) in what it told them about legal aid for representation at inquests (echoes of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622: see [2015] Family Law at ).

R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), the QBD divisional court held that an amendment to remuneration regulations in relation to judicial review applications was outside the statutory aims of LASPOA 2012. In April 2014, Civil Legal Aid (Remunerations) Regulations 2013 by adding reg 5A, the effect of which was to set out that if a legally aided applicant for judicial review was not given permission to proceed then his/her solicitors would not be paid (reg 5A(1)), save in the discretion of the LAA (reg 5A(1)(b)). The divisional court (Beatson LJ and Ousely J) held that the amendment went beyond the stated purpose of the statutory scheme (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Regulation 5A was not connected with the aim of LASPOA 2012 and was inconsistent with what Parliament intended. The new scheme put too much risk on lawyers; and there were too many variables from what the court described as the ‘standard [judicial review permission stage] scenario’ (as explained in [41]-[61]) to make reg 5A(1) fair to the lawyers for legally aided parties.

R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin) (the case so far which has gone against applicants) – the QBD Divisional Court (Lord Justice Fulford and Mrs Justice Lang DBE; 22 January 2015) refused an application to quash delegated legal aid legislation. Had the Lord Chancellor exceeded his statutory regulation-making powers under LASPO 2012 s 12 in relation to court applications arising from domestic violence? The court said not: the Lord Chancellor was entitled to limit in time prior to the application the period over which domestic violence was said to have occurred.

Exceptional case determination

ECDs under LASPOA s 10(3) are an important safety net for applicants for legal aid. In Gudanaviciene the Court of Appeal analysed and defined the s 10(3) jurisdiction; and when an ECD should be made. Section 10(3) makes a LAA grant ‘exceptional’, not because of some rarity of grant, but because of the factors which give rise to it. ‘Exceptionality is not a test’ (para [29]), it is merely a term of description. Under the decision in Gudanaviciene ([32]) if a LAA decision-maker ‘concludes that a denial of ECD funding would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination’. This, in turn, his requires ‘an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it’. By definition each case will depend on its facts, and how the individual litigation may be expected to proceed.

If the decision-maker cannot decide if there would be a breach of Convention or EU rights, s/he next goes on to consider the funding application under s 10(3)(b), namely the ‘risk’ of a breach: ‘The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach…’. A ECD grant should be made.

Right to a fair trial: not just a theoretical right

All ECD determinations depend on human rights issues; but in practice the most common will be those which determine whether or not a fair trial is likely. In JG (above) Black LJ commented (six months before Gudanaviciene) on how she would regard the state’s obligation to provide s 10(3) legal aid to protect Art 6(1) rights. She referred to Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601 as modern authority for the proposition that there may be no obligation under European Convention 1950 to make legal aid available for all civil disputes.

However Muscat also asserts that the Convention:

[45] … 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.

Access to the court must include the ability to see the case through to a ‘determination’. Muscat (at para 46) breaks down the applicant’s entitlement to legal aid as follows:

(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;
(2) Legal aid should be available guaranteed – part of a State’s ‘obligation’ – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1); and
(3) There should be active intervention by a State to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’.

Child’s welfare central to any determination

The welfare of any child concerned must be the starting point for any LAA decision-making and in the context of the child’s Art 6(1) rights. It is the basis for a challenge to any wrong LAA decision. And as Collins J reminded the LAA decision-makers in R (ota T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) (decided 3 weeks after JG at first instance, but not cited in the Court of Appeal judgement): any decision by the LAA must be backed by reasons (at para [14]).

Both Gudanaviciene and JG both give valuable guidance on what may be regarded as a fair trial and how this may be impeded for the individual applicant in the particular case.

A PRIVATE FUNDING ALLOWANCE IN CHILDREN PROCEEDINGS

Other parent to provide private funding

In MG & JG v JF [2015] EWHC 564 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html after a judicial catalogue of complaints about lack of legal aid, Mostyn J made an order in proceedings under Children Act 1989 s 8 that a father should pay a funding allowance to the mother (and her former civil partner: called by him the child’s ‘mothers’) of a child. It is unlikely he had jurisdiction to make this order; and he does not seem fairly to have considered to what legal aid funding the ‘mothers’ might have been entitled.

To compound it all, it is not clear that Mostyn J properly considers the critical difference between the powers of the court to award costs (Senior Courts Act 1981 s 51(1)); and the limited powers of a judge to order one party to pay another’s funding for a case. At para [21] of the judgment he describes the difference between funding and costs as ‘a specious distinction without a difference, but [he went on] that is where we find ourselves, now that the fourth pillar of the welfare state has been largely demolished’ (the fourth pillar he referred to was legal aid; but that was eminently only for funding cases, and nothing to do with costs following the event of litigation).

Funding by another party: by statute only

Provision for funding of family proceedings hitherto has hitherto been by statute or derived from statutory provision, starting with Holman J’s A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FLR 377, which was approved by the Court of Appeal in Moses-Tiaga v Tiaga [2005] EWCA Civ 1013; [2006] 1 FLR 1074 with the critical rider (per Thorpe LJ at para [25]) that the provision of funding (Thorpe LJ’s term, be it noted: see italicised passage below) is linked to the statutory provision in Matrimonial Causes Act 1973 s 22:

[If] the applicant has no assets, can give no security for borrowings, cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth … then there is no source of funding of the litigation other than the approach to the court for a maintenance pending suit that will include a substantial element to fund the cost of the litigation. Obviously, in all these cases the dominant safeguard against injustice is the discretion of the trial judge and it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction. But, I am in no doubt that in such exceptional cases, s. 22 of the Matrimonial Causes Act 1973 can in modern times be construed to extend that far.

Wilson LJ confirmed the jurisdiction in MCA 1973 in Currey v Currey (No 2) [2006] EWCA Civ 1338 when he said

[20] In my view the initial, overarching enquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore, not to forget the third of Thorpe L.J.’s three features, she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. I would add, fourthly, that the court needs also to be satisfied that there is no such public funding available to the applicant as would furnish her with legal advice and representation at a level of expertise apt to the proceedings, i.e. that the applicant does indeed in that regard fall within the unserved constituency referred to by Thorpe L.J. in the statement quoted at [1] above.

It will be seen that Wilson LJ added to the Moses-Tiaga list the requirement – see the italicised passage – to apply for legal aid. The Currey para [20] list has been treated as the basis for the statutory provision – Matrimonial Causes Act 1973 s 22ZA – which has replaced the court’s ability to provide for funding allowances under s 22. (Notably in Mostyn J cites only para [21] of Currey, so – it may be thought – crucially omits the requirement that a party show they cannot get legal aid: see his para [8] and [22].)

Facts of the case and application

The facts of MG & JG v JF [2015] EWHC 564 (Fam) were that MG and JG (45) formed a same-sex relationship and commenced cohabitation in a home they bought in the north of England. They in fact entered into a civil partnership on 14 July 2006; though in the course of the court proceedings they separated, and their civil partnership was dissolved. They had decided in 2005 that they wanted a child. JF was to be the father and it was agreed that JF would be named on the birth certificate and that JG would be a ‘legal step-parent’ with the idea that all three would have equal legal rights. On 24 April 2007 JFG was born by caesarean section. A legal agreement as to JG’s status was made on 23 May 2007, the day JFG’s birth was registered.

From 2007 to October 2012 JF enjoyed periodic contact with JFG monthly or bi-monthly. The contact was typically based at the home of the mothers, or at JF’s home, although JF was able to take his son out. From October 2012 serious difficulties arose over contact such that all parties agreed that the relationship between the mothers and the father broke down; though there is disagreement as to why. A psychologist recommended a detailed programme of supervised, facilitated contact to seek to restore the relationship between father and son, and many other therapeutic recommendations were also made. At the PHR all parties accepted these recommendations in principle. The final hearing was listed for hearing on 24 February 2015.

Mostyn J explained the means of the ‘mothers’ and why, but for the LASPOA 2012 changes, they would have been eligible for legal aid on the basis of their means. They were not eligible any longer, he said:

[4] On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force. It removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. In such a case the alleged victim, but not the alleged perpetrator, might receive legal aid. Otherwise, at a stroke, 63 years of state funding of cases such as this was swept away. Had that “reform” not taken place both MG and JG would have been entitled to legal aid, although in JG’s case subject to a contribution, estimated to be £1,004. With the state washing its hands of MG and JG they now look to JF to fund their representation.

Mostyn J therefore disposed of their funding applications in the following terms;

[34] In my judgment JF (the father) should pay 80% of each of the claims of MG and JG. Therefore he will pay MG £12,202 and JG £8,394. In addition he will pay 80% of all future professional costs in respect of therapeutic work and MG and JG will each pay 10% of such costs.

[35] Thus MG will have to find £3,050 and JG £2,098 and they will each have to find 10% of the future costs of therapeutic work. In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.

[36] It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.

The child, JFG, was a party, it will be recalled, and had legal aid. Al aspect of expert evidence was therefore to be paid by him:

[37] This leaves the costs of expert evidence which will come into being between now and the IRH. The consent order provides for the educational psychologist to answer further questions and for the psychologist to file an addendum report. In my judgment these should be paid for by JFG and in my opinion such fees are a reasonable charge on his legal aid certificate, for the following reasons.

Jurisdiction to award funding

Hitherto funding is only available by statutory means: for example public funding (mostly via the dwindled legal aid budget) or through some other statutory means. MCA 1973 s 22ZA has specifically provided for legal services orders. Funding is possible under Children Act 1989 Sch 1 where a financial claim for a child can be pursued (in Dickson v Rennie [2014] EWHC 4306 (Fam) Holman J enabled a mother to be paid under CA 1989 Sch 1 to pursue a child support tribunal appeal).

Mostyn J states no statutory basis for his order. It is most doubtful that the courts have an inherent jurisdiction to award funding provision (otherwise every party in civil litigation would try to obtain funding from their opponent). Without a statute or a finding that he has an inherent jurisdiction it is difficult to see how a funding order can be made in this case.

However there is a prior point. Mostyn J specifically found that the mothers would have been financially eligible for legal aid. He went on to find that the mothers could not be expected:

[8] …to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights.

He was aware of the LASPOA 2012 s 10(3) ‘safety net’:

[13] … A safety net was included by section 10(3)(b) which gave the Director of the Legal Aid Agency the discretion to award legal aid where “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 …a breach [of Convention or EU rights].” … Lord Chancellor issued guidance concerning section 10(3)(b) which stated that it should be confined to “rare” cases which are of the “highest priority”. But this guidance has been quashed as legally defective by Collins J in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). That decision is under appeal.

Gudanaviciene and exceptional case determination

Mostyn J was not aware that the Gudanaviciene had been successfully appealled against. The exceptional case determination (ECD) guidance he refers to remains quashed (R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial# ).

In Gudanaviciene the Court of Appeal said of s 10(3) that it explains when an ECD should be made. An application becomes ‘exceptional’ not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As Gudanaviciene says bluntly: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. Of s 10(3)(a) the court went on:

[31] … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….

[32] In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it….
If the ‘Director’ – the LAA decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

[32] …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….

These would not normally be matters for Mostyn J to consider; but given his proposed decision as to funding, they were issues in the Currey list (see quote from Currey para [20] above) for the court to consider before an order could be made (always assuming that the court had a jurisdiction, which I doubt). Having found as Mostyn J did as to their difficulties of representation, surely he must go on to make an assessment of their chances under LASOA 2012 s 10(3) and the correct version of Gudanaviciene?