Director of Legal Aid Casework and another v IS (a protected party, by his litigation friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Laws LJ,Lord Justice Briggs,Lord Justice Burnett |
| Judgment Date | 20 May 2016 |
| Neutral Citation | [2016] EWCA Civ 464 |
| Docket Number | Case No: C1/2015/2576 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2016 |
[2016] EWCA Civ 464
Lord Justice Laws
Lord Justice Briggs
and
Lord Justice Burnett
Case No: C1/2015/2576
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURTCO/17381/2013
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Chamberlain QC, Ms C McGaheyQC andMr M Birdling (instructed by The Treasury Solicitor) for the The Appellants
Mr R Hermer QC and Mr C Buttler (instructed by The Public Law Project) for the The Respondent
Hearing dates: 21 & 22 March 2016
INTRODUCTION
This is an appeal by the Director of Legal Aid Casework and the Lord Chancellor, with permission granted by the judge below, against the decision of Collins J given in the Administrative Court on 15 July 2015 ( [2015] EWHC Admin 1965). The case concerns the legality of the Exceptional Case Funding (ECF) scheme for the administration of legal aid pursuant to s.10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and related issues. The claimant is a protected party acting by the Official Solicitor. Though he is the respondent to the appeal, it will make for clarity if I refer to him as the claimant. Collins J allowed his application for judicial review and granted declarations that (1) the ECF Scheme as operated is unlawful as giving rise "to an unacceptable risk that an individual will not be able to obtain legal aid where failure to provide it would be a breach of that individual's rights under the European Convention of Human Rights (to the extent applied by the Human Rights Act 1998) or under directly enforceable EU law", (2) the Civil Legal Aid (Merits Criteria) Regulations 2013 (the Merits Regulations) and (3) the Exceptional Case Funding Guidance (Non-Inquests) (the Guidance) are unlawful in the respects and to the extent set out in the judgment. The appellants now appeal against these declarations.
THE LEGISLATION
As Collins J said (paragraph 24), "LASPO was enacted in order to limit the grant of legal aid with a view to making savings in the cost to public funds". The categories of work for which in the ordinary way civil legal aid was to be available were significantly restricted. The basic provision is given by s.9(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 Director" (the first appellant) is the director of the Legal Aid Agency (the LAA). The Director is designated by the Lord Chancellor pursuant to s.4( 1). S.4(3) – (5) provide:
"(3) 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.
(4) 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.
(5) The Lord Chancellor must publish any directions and guidance given under this section."
Part 1 of Schedule 1, referred to in s.9(1)(a), may be varied by the Lord Chancellor under s.9(2). It describes those categories of case for which civil legal aid may ordinarily be provided. Such services are referred to, in the patois of this area of the law, as being "in scope". Civil legal aid for other services ("out of scope") can only be granted through the ECF mechanism given by s.10, which is the genesis of the dispute in this case. S.10 provides so far as relevant:
"(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)… is satisfied.
(2) This subsection is satisfied when 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 particular circumstances of the case, having regard to any risk that failure to do so would be such a breach".
As Mr Chamberlain QC for the appellants submitted, ss.9(1) and 10(2) are parallel provisions, respectively setting out the core mechanism for the grant of civil legal aid in scope and out of scope respectively. S.11(1) requires the Director to determine whether an applicant satisfies the means test provided for by s.21 and regulations made under that section, and also a merits test, constituted by "criteria set out in regulations made under this paragraph" (s.11(1)(b)). The means and merits tests apply both to in scope and out of scope provision. S.11 continues:
"(2) In setting the criteria, the Lord Chancellor—
(a) must consider the circumstances in which it is appropriate to make civil legal services available under this Part, and
(b) must, in particular, consider the extent to which the criteria ought to reflect the factors in subsection (3).
(3) Those factors are—
(a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
(b) the availability of resources to provide the services,
(c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part,
(d) the importance for the individual of the matters in relation to which the services would be provided,
(e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
(f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
(g) if the services are sought by the individual in relation to a dispute, the individual's prospects of success in the dispute,
(h) the conduct of the individual in connection with services made available under this Part or an application for such services,
(i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and
(j) the public interest.
(4) In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which more than one form of civil legal service could be provided for an individual, the individual qualifies under this Part for the form of service which in all the circumstances is the most appropriate having regard to the criteria.
(5) The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings.
(6) Regulations under subsection (1)(b) may provide that no criteria apply in relation to a prescribed description of individual or services."
The Merits Regulations
The Merits Regulations made under s.11 of LASPO (by s.41(6) their making is subject to the affirmative resolution procedure in both Houses of Parliament) apply, like s.11 itself, both to in scope and out of scope provision. The Regulations encompass the criteria to be applied pursuant to s.11(1)(b). The citations which follow are from the text as it was before Collins J; they were amended following his judgment so that the statutory system might properly be operated while this appeal was pending.
Regulation 4 requires the Director to assess, in accordance with the prospects of success test set out in Regulation 5, the likelihood that an individual will obtain a successful outcome at a trial or other final hearing. Regulation 5:
"(1) Where the Director assesses, for the purposes of these Regulations, the prospects of success of a matter to which an application for civil legal services relates, the Director must classify the prospects of that matter as follows—
(a) 'very good', which means an 80% or more chance of obtaining a successful outcome;
(b) 'good', which means a 60% or more chance, but less than an 80% chance, of obtaining a successful outcome;
(c) 'moderate', which means a 50% or more chance, but less than a 60% chance, of obtaining a successful outcome;
(d) 'borderline', which means that the case is not 'unclear' but that it is not possible, by reason of disputed law, fact or expert evidence, to—
(i) decide that the chance of obtaining a successful outcome is 50% or more; or
(ii) classify the prospects as poor;
(e) 'poor', which means the individual is unlikely to obtain a successful outcome; or
(f) 'unclear', which has the meaning given in paragraph (2).
(2) 'Unclear' means the Director cannot put the case into any of the categories in paragraph (1)(a) to...
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