Glasgow City Council v SLAB
| Jurisdiction | Scotland |
| Judge | Lord Woolman |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] CSIH 37 |
| Date | 23 May 2018 |
| Court | Court of Session (Inner House) |
| Docket Number | No 26 |
[2018] CSIH 37
First Division
Lord Woolman
Airey v Ireland (A/32) (1979–80) 2 EHRR 305
Bank Mellat v HM Treasury (No 2) [2013] UKSC 38; [2014] AC 700; [2013] 4 All ER 495; [2013] Lloyd's Rep FC 557
Board of Education v Rice [1911] AC 179
C v Scottish Legal Aid Board 1999 SLT (Sh Ct) 48
Errington v Wilson 1995 SC 550; 1995 SLT 1193; 1995 SCLR 875
Fife Regional Council v Scottish Legal Aid Board 1994 SLT 96
London Docklands Development Corp v Legal Aid Board CA, 22 March 1994, unreported
McLeod v Cedar Holdings Ltd 1989 SLT 620
McTear v Scottish Legal Aid Board 1997 SLT 108; 1995 SCLR 611
Michaud v France (12323/11) (2014) 59 EHRR 9
O'Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER 1124; 126 SJ 820
Pairc Crofters Ltd v Scottish Ministers [2012] CSIH 96; 2013 SLT 308; 2013 SCLR 544
Paulet v UK (6219/08) (2015) 61 EHRR 39; [2014] Lloyd's Rep FC 484; [2014] Crim LR 750
R v Deputy Governor, Parkhurst Prison, ex p Hague [1992] 1 AC 58; [1991] 3 WLR 340; [1991] 3 All ER 733; (1993) 5 Admin LR 425; [1992] COD 69; (1991) 135 SJLB 102
R v Legal Aid Board, ex p Owners Abroad [1998] PIQR P116; [1998] COD 22
R v Manchester Legal Aid Committee, ex p RA Brand & Co Ltd [1952] 2 QB 413; [1952] 1 All ER 480; [1952] 1 TLR 476; 96 SJ 183
R v P Borough Council, ex p S [1999] Fam 188; [1999] 2 WLR 777; [1999] BLGR 203
R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531; [1993] 3 WLR 154; [1993] 3 All ER 92; (1995) 7 Admin LR 1; (1993) 143 NLJ 991
R (on the application of King) v Secretary of State for Justice [2015] UKSC 54; [2016] AC 384; [2015] 3 WLR 457; [2016] 1 All ER 1033
R (on the application of Osborn and ors) v Parole Board [2013] UKSC 61; [2014] AC 1115; [2013] 3 WLR 1020; [2014] 1 All ER 369; [2014] NI 154; [2014] HRLR 1; (2013) 157 (39) SJLB 37
R (on the application of Pattison) v Legal Services Commission [2004] EWHC 364
Stefan v General Medical Council [1999] 1 WLR 1293; [2000] HRLR 1; 6 BHRC 487; [1999] Lloyd's Rep Med 90; 49 BMLR 161; 143 SJLB 112
Venter v Scottish Legal Aid Board 1993 SLT 147; 1993 SCLR 88
Wiseman v Borneman [1971] AC 297; [1969] 3 WLR 706; [1969] 3 All ER 275; 45 TC 540; [1969] TR 279; 113 SJ 838
Bennion, FAR, Statutory Interpretation: A code (6th Jones ed, LexisNexis, London, 2013), sec 341
Scottish Legal Aid Board, Civil Legal Assisstance Handbook (Scottish Legal Aid Board, Edinburgh, 2006), paras 1.10, 4.91 (Online: https://www.slab.org.uk/providers/handbooks/Civil/ (6 July 2018))
Legal aid — Party seeking legal aid for reclaiming motion — Opponent making representations to Scottish Legal Aid Board — Opponent not given full information about nature of proposed reclaiming motion — Opponent not given reasons for grant of legal aid for reclaiming motion — Whether unfair for legal aid to be granted in those circumstances — Whether Art 1 of First Protocol of the European Convention on Human Rights and Fundamental Freedoms breached — Civil Legal Aid (Scotland) Regulations 2002 (SI 2002/494), regs 5, 7, 8 — Legal Aid (Scotland) Act 1986 (cap 47), secs 2, 14, 34
PQ presented two petitions in the Court of Session seeking judicial review of various decisions made by Glasgow City Council as provider of social care to his mother, MQ, for whom he was legal representative. Both petitions, after sundry procedure, were refused by the Lord Ordinary (Boyd of Duncansby) ([2016] CSOH 137).
PQ thereafter sought to reclaim against the decision to refuse both petitions and applied for legal aid to do so. The Scottish Legal Aid Board initially refused PQ's application for legal aid but, after being provided with further information by PQ, and despite some contrary representations made to it by Glasgow City Council, reversed its initial decision and granted legal aid. On 17 January 2018, the reclaiming motions were refused by an Extra Division of the Inner House (Lord Brodie, Lord Drummond Young and Lord Malcolm) ([2018] CSIH 5).
Glasgow City Council, contemporaneously to the reclaiming motions, presented a petition in the Court of Session seeking judicial review of the decisions of the Scottish Legal Aid Board to grant legal aid to PQ for the reclaiming motions. The petition and answers called for a hearing before the Lord Ordinary (Woolman), on 14 July 2017. By interlocutor dated 22 December 2017 the Lord Ordinary granted the petition and reduced the decisions ([2017] CSOH 155). The Scottish Legal Aid Board, supported by PQ, reclaimed against the Lord Ordinary's decision.
Section 2 of the Legal Aid (Scotland) Act 1986 (cap 47) (‘the 1986 Act’) enacts that the Scottish Legal Aid Board, “(1) … may do anything – (a) which it considers necessary or expedient for securing the provision of legal aid and of advice and assistance in accordance with this Act; or (b) which is calculated to facilitate or is incidental to or conducive to the discharge of its functions.” Section 14 provides, subject to the finances of the applicant, “(1) … civil legal aid shall be available to a person if, on an application made to the Board – (a) the Board is satisfied that he has a probabilis causa litigandi; and (b) it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.” Section 34 states, “(1) … no information furnished for the purposes of this Act to the Board … shall be disclosed – (a) in the case of such information furnished by … a person seeking … legal aid … without the consent of the person seeking … legal aid … and any person who, in contravention of this subsection, discloses any information obtained by him when employed by … the Board shall be guilty of an offence … (2) Subsection (1) above shall not apply to the disclosure of information – (a) for the purpose of the proper performance or facilitating the proper performance by … the Board … of duties or functions under this Act”.
Regulation 5 of the Civil Legal Aid (Scotland) Regulations 2002 (SI 2002/494) provides, “(1) … an application for legal aid under section 14 of the Act shall be – (a) in such form as the Board may require …; (b) accompanied by a statement … as to the nature of the case and the interest of the applicant therein; (c) accompanied, so far as possible, by such precognitions and other documents as may be requisite to enable the Board to determine the application; and (d) accompanied by a copy for each opponent of the statement referred to in sub-paragraph (b) above together with such form of intimation as the Board may require in relation to each opponent”. Regulation 7 states, “(1) … it shall be the duty of the Board to send to any opponent, or to the solicitor acting for any opponent – (a) notification that application for legal aid has been made; (b) a copy of the statement referred to in regulation 5(1)(b) above; and (c) notice of the opponent's right, under regulation 8 below, to make representations to the Board.” Regulation 8 provides, “Any opponent may, within 14 days … of being notified of the application … make to the Board representations in writing as to the application, and the Board shall … consider any such representations before determining the application.”
Article 1 of the First Protocol of the European Convention on Human Rights and Fundamental Freedoms provides that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The interested party presented two petitions seeking judicial review of Glasgow City Council's decisions regarding the provision of social care for his mother. Both petitions were refused by the Lord Ordinary (Boyd of Duncansby). The interested party reclaimed.
The interested party applied to the Scottish Legal Aid Board for legal aid for the reclaiming motion. The council made representations to the Board against the granting of legal aid. The council also sought further information from the Board about the interested party's application, but the interested party refused consent for its disclosure. The Board granted legal aid. The council sought judicial review of the Board's decision.
The Lord Ordinary granted the petition and reduced the decision. He held that the council had not been given fair notice of the interested party's case, that the Board should have required the interested party to disclose information to the council and that the Board should have provided the council with reasons for their decision. The Lord Ordinary rejected the council's contention that the Board had breached Art 1 of the First Protocol to the Convention. The council reclaimed.
Held that: (1) the grant of legal aid, being similar to the provision of funding from other third parties such as a trade union or insurer, did not infringe an opponent's right to the peaceful enjoyment of their possessions under Art 1 of the First Protocol to the Convention (para 50); (2) the Board were under an obligation to act fairly both to the applicant and the opponent in determining whether to grant legal aid (para 46); (3) the 1986 Act did not entitle an opponent to launch a full defence to the merits of the applicant's case but rather allowed them to point out obvious flaws in the application (paras 52, 53); (4) given the limited effect of granting legal aid, the common law did not provide an opponent with any greater procedural entitlement (para 54); (5) very little information required to be provided by an opponent in an application for legal aid for an appeal, the general nature of the points to be made on appeal ought to be obvious unless the grounds for an appeal were extraordinary, there was no need to disclose the intended grounds in this case (paras 57–59); (6) considering that there was no right of review, an opponent was not entitled to reasons for legal aid being granted (para...
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