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)  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  EWFC 31 and Re D (A Child)  EWFC 39, (a case preceded by A Father v SBC and ors  EWFC 6 Baker J and Re D (A Child)  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  EWCA Civ 656 (on appeal from Re JG (a child by her guardian) v LSC and ors  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  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 ). 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  EWHC 402 (Admin) – the Lord Chancellor’s inquests guidance to LAA case workers was ‘materially in error’ (para ) 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  EWCA Civ 1622: see  Family Law at ).
R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor  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  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 -) 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  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 ), it is merely a term of description. Under the decision in Gudanaviciene () 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  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:
 … 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  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 ).
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.