Director of Legal Aid Casework v R Sunita Sisangia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Christopher Clarke,Lord Justice Elias |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] EWCA Civ 24 |
| Docket Number | Case No: C1/2014/3958 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2016 |
[2016] EWCA Civ 24
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Mr Justice Dingemans
CO09582014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Lewison
and
Lord Justice Christopher Clarke
Case No: C1/2014/3958
Mr Martin Chamberlain QC & Ms Sarah Ford (instructed by Legal Aid Agency, Central Legal Team) for the Appellant
Ms Phillippa Kaufmann QC & Mr Jude Bunting (instructed by Hodge Jones & Allen LLP) for the Respondent
Hearing date: 16 December 2015
Ms Sisangia wished to bring proceedings against the Commissioner of Police for the Metropolis for false imprisonment and assault arising out of her arrest and detention on 7 January 2011. She applied to the Director of Legal Aid Casework for legal aid. However, following a review of an initial refusal, the Director maintained the refusal of her request on the ground that she had not shown that the proposed action was within the scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") and in particular paragraph 21 of Schedule 1 to that Act. No other paragraph of that Schedule was or is relied on. Dingemans J held that the Director had misinterpreted paragraph 21 and quashed that decision. We were told that following the quashing of his decision the Director did allow Ms Sisangia legal aid to pursue her claim. But he is concerned about the wider implications of the judge's decision. Hence this appeal.
Under LASPO the Lord Chancellor must secure that legal aid is made available in accordance with Part I of the Act: section 1 (1). Legal aid includes civil legal services required to be made available under section 9: section 1 (2). Section 9 provides that one condition for qualification is that the civil legal services in question fall within the descriptions in Part 1 of Schedule 1 to LASPO: section 9 (1) (a). Section 11 of LASPO introduces two further tests for qualification for legal aid, which can conveniently be labelled the means test and the merits test.
The immediately relevant parts of Part 1 of Schedule 1 to LASPO provide:
" Abuse of position or powers by public authority
21 (1) Civil legal services provided in relation to abuse by a public authority of its position or powers.
General exclusions
(2) Sub-paragraph (1) is subject to—
(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1, 2, 3, 4, 5, 6, 8 and 12 of that Part, and
(b) the exclusion in Part 3 of this Schedule.
Specific exclusion
(3) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence.
Definitions
(4) For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission—
(a) is deliberate or dishonest, and
(b) results in harm to a person or property that was reasonably foreseeable.
(5) In this paragraph—
"clinical negligence" means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
"public authority" has the same meaning as in section 6 of the Human Rights Act 1998."
Part 2 of the Schedule provides so far as relevant:
"The services described in Part 1 of this Schedule do not include the services listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise.
1 Civil legal services provided in relation to personal injury or death.
2 Civil legal services provided in relation to a claim in tort in respect of negligence.
3 Civil legal services provided in relation to a claim in tort in respect of assault, battery or false imprisonment.
4 Civil legal services provided in relation to a claim in tort in respect of trespass to goods.
5 Civil legal services provided in relation to a claim in tort in respect of trespass to land.
6 Civil legal services provided in relation to damage to property.
…
8 Civil legal services provided in relation to a claim in tort in respect of breach of statutory duty.
…
12 (1) Civil legal services provided in relation to a claim for damages in respect of a breach of Convention rights by a public authority to the extent that the claim is made in reliance on section 7 of the Human Rights Act 1998.
(2) In this paragraph—
"Convention rights" has the same meaning as in the Human Rights Act 1998;
"public authority" has the same meaning as in section 6 of that Act."
It is also pertinent to note paragraph 19 of Part I of the Schedule, which encompasses claims for judicial review of an enactment, decision, act or omission. This is subject to the same exceptions to the exclusions as paragraph 21, but it contains no equivalent to paragraph 21 (4). Paragraph 22 encompasses damages claims for an act or omission by a public authority that involves "a significant breach" of Convention rights. Like paragraph 19, it is also subject to the same exceptions to the exclusions as paragraph 21; and it too contains no equivalent of paragraph 21 (4).
In essence the judge held that paragraph 21 (4) of Schedule 1 was a comprehensive definition of what was entailed in a claim for abuse of position or power rather than a statement of the minimum criteria for such a claim. He had three main reasons for his conclusion:
i) There was no generally recognised definition of "abuse of position or power" that could be derived from the authorities;
ii) Paragraph 21 (4) was in a part of the paragraph headed by the word "Definitions"; and
iii) The definition only applies where there is already a viable claim in tort, which is in itself a limiting factor on the availability of legal aid.
The judge went on to hold that for the purposes of the definition, as applied to the facts of our case, it was only the arrest itself that had to be deliberate. It was not necessary to allege that the arresting officers knew that they had no power of arrest, because if that had to be alleged then every request for legal aid for false imprisonment would have to amount to a claim for misfeasance in public office. Since any claim for misfeasance in public office is, in effect, a claim of dishonesty any other interpretation would give no effect to the alternative conditions of dishonesty and deliberateness.
There is no doubt that ever since the Magna Carta, if not before, the law has attached "supreme importance" to the liberty of the subject: Murray v Ministry of Defence [1988] 1 WLR 692, 703B (Lord Griffiths). It is a "fundamental constitutional principle": R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] AC 245 at [219] (Lord Collins). The citizen ought, therefore, in principle to have unimpeded access to a court to vindicate his rights. A right of access to the court is itself a constitutional right: R (Witham) v Lord Chancellor [1998] QB 575. However, this case is not about access to a court. It is about whether the citizen is entitled to bring her claim with the aid of lawyers paid for at public expense. This is not analogous to, say, the requirement that an intending claimant should pay a court fee, as Laws J explained in Witham at 586:
"Mr. Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the state which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
Although Ms Kaufmann QC's supplemental skeleton argument appeared to abandon reliance on the point, in her oral submissions she stressed the importance of what she called the "constitutional torts" protecting fundamental common law values such as inviolability of the person and of property. However, whatever we decide, a person in the position of Ms Sisangia is entitled to pursue her claim. She may be able to persuade a lawyer to take on her case pro bono or under a conditional fee agreement. Or she may present her case as a litigant in person. There is also the possibility that in a case of false imprisonment a claim may be funded under paragraph 22 of Schedule 1 as involving a "significant breach" of a Convention right. I do not, therefore, consider that the invocation of high constitutional principle helps in answering the questions of statutory construction posed by this appeal.
The effect of the judge's characterisation of paragraph 21 (4) as an exclusive or comprehensive definition is that any deliberate act by a public authority that causes reasonably foreseeable harm to another counts as an abuse of power. The breadth of that proposition is apparent. Indeed Ms Kaufmann did not attempt to support that position, but instead offered a different interpretation of the paragraph. So it is common ground, in my judgment rightly, that the interpretation that the judge adopted was wrong.
In my judgment the judge's error was to ignore what it was that was being defined. This is sometimes called "the potency of the term defined": Bennion on Statutory Interpretation (6 th ed p 518). For example in MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47, [2005] 4 All ER 107 the House of Lords was concerned with the meaning of "potential emoluments" in the ...
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