IS v Director of Legal Aid Casework
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Beatson,Lady Justice Gloster |
| Judgment Date | 09 May 2014 |
| Neutral Citation | [2014] EWCA Civ 886 |
| Docket Number | Case No: C1/2014/1414 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2014 |
[2014] EWCA Civ 886
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Lord Justice Beatson
Lord Justice Gloster
Case No: C1/2014/1414
Ms P Kaufmann, QC (instructed by Public Law Project) appeared on behalf of the Appellant
Mr M Chamberlain, QC (instructed by Treasury Solicitor) appeared on behalf of the Respondent
This is an appeal against the refusal of the High Court to make a protective costs order ("PCO") in current judicial review proceedings, permission having been granted by Ouseley J on 25 April 2014. The appellant is the claimant in the judicial review claim and the respondents are the defendants to that claim. I shall refer to them as claimant and defendants respectively.
The claimant is a 59-year old national of Nigeria who, it is believed, has been in the United Kingdom for some 13 years. He has no passport in his possession and would appear to be in the UK unlawfully. The claimant is blind, cognitively impaired and unable adequately to care for himself. He is described by a psychiatrist who reported on 28 March 2013 as a person performing at the level of a dementia sufferer. Hackney Council declined to provide the claimant with accommodation and support under s.21 of the National Assistance Act 1948, although under an order made on an interim basis by Lang J, temporary assistance is being given.
The official solicitor acts for the claimant in his claim for judicial review brought against the Council in other proceedings. The level of assistance for which the claimant is eligible may depend upon the claimant's immigration status. For the purpose of regularising the claimant's immigration status he first requires advice as to the grounds upon which he can apply for leave to remain. The official solicitor is not in a position to provide that advice nor is he in a position to fund advice provided by a solicitor authorised for that purpose under s.84 of the Immigration and Asylum Act 1999. For this reason, the official solicitor sought legal aid for the claimant in order that he could make the appropriate application to the Home Office. As is implied by this summary of the background the application would not be made with a view to litigation but with a view to the making of an administrative decision by or on behalf of the Secretary of State for the Home Department.
The claimant is represented in these proceedings by the Public Law Project (PLP). His case was at this time being handled by Mr Ravi Low-Beer, whose statement we have, dated 9 December 2013. From the limited information available to PLP it was considered that the claimant's application for leave to remain was best founded on Article 8 of the European Convention on Human Rights. For that reason, it was concluded that the claimant would not qualify for legal aid under Part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) granted in respect of "general cases". However, s.10 of LASPO makes exceptional provision for cases that fall outside the scope of schedule 1. Under s.10, the director may make an exceptional case of determination when, (a) the determination is necessary to avoid a breach of the claimant's convention rights or of any EU rights to representation or, (b) when it is appropriate to do so in the particular circumstances of the case having regard to any risk that failure to make the determination would risk a breach of those rights. The procedure for making an application for exceptional funding is provided by Part 8 of the Legal Aid (Procedure) Regulations 2012. In short, it is the claimant's assertion that a person with his vulnerability would be unable to comply with the regulations and the administrative procedure introduced in support of the regulations without professional assistance.
On 11 June 2013, PLP sought a preliminary view from the director as to the claimant's eligibility for exceptional funding. On 25 June, the response was negative, repeated as part of a review on 16 July. PLP completed and lodged a formal application to the director on 20 August; the application was refused on 11 September. Amongst others, a ground of refusal was that there was no immigration decision in existence which interfered with any of the claimant's convention rights.
The claimant, on 9 December, issued a claim for judicial review of the decision to refuse him exceptional funding. At the heart of the claim was the assertion that the claimant's Article 8 rights were engaged in the application the claimant sought to make. It is put thus at paragraph 79 of the amended grounds:
"79 … Where the State makes assistance for disabled persons contingent on the grant of leave to remain, effective respect for private life obliges the State to afford disabled persons a procedure by way they may apply for such leave — in order 'to make this means of protection effectively accessible when appropriate to anyone who may wish to have recourse thereto'( Airey v Ireland [1979] 2 EHRR 305 at [33])"
Having discussed the claim with the official solicitor, PLP was instructed to advance further grounds which challenged not merely the decision in the claimant's case but also the lawfulness of the administration of the exceptional funding scheme generally, which it is now contended, frustrates the statutory purpose in the case of vulnerable persons and contravenes s.149 of the Equality Act 2010. Amended grounds were lodged on 14 January 2014. Issue was joined by the defendants in their grounds of 24 March 2013.
In the judicial review claim, counsel for the claimant and PLP are acting under a conditional fee agreement (CFA). The claimant does not have costs liability insurance. The official solicitor acts for the claimant because there is no other person suitable and willing to act. In general, the official solicitor is not in a position to act, unless external funding of the claim, either private or public, is in place. When the claimant is awarded legal aid a litigation friend will be able to take advantage of a conventional protection for the claimant from an award of costs. However, where the claimant is not in receipt of legal aid, the litigation friend is exposed to the risk that an award of costs in favour of the defendant will be made against him. To meet this contingency the Law Society holds and administers a fund whose purpose is to support claimants who are making, in their judgment, meritorious claims concerning the access to justice implications of LASPO.
On 3 December 2013 the Law Society agreed to indemnify the Official Solicitor and the claimant against any award of costs up to a sum of £55,000. On 30 January 2014, Turner J made an order that the claimant's case should be managed and heard, together with five others, in which the issue of refusal of exceptional funding arose. Those claims in respect of which permission had not yet been considered, of which this is one, were to be heard in a rolled-up hearing. Each of the other claimants has been awarded legal aid. In an attempt to provide comfort to the official solicitor PLP wrote to the Treasury Solicitor on 26 February to secure agreement that the defendants would limit any costs claimed against the claimant to £55,000; that request was refused on 4 March.
On 5 and 6 March 2014, PLP notified the defendants of their intention to apply for a PCO. That application was also resisted. By agreement, the application was considered on the papers by Mr CMG Ockleton, Sitting as a Deputy Judge at the High Court, on 14 April 2014. He refused the application and in so doing observed as follows:
"The Order sought is neither necessary nor appropriate in this case. It is not appropriate because the claimant seeks legal aid solely in order to better his own immigration status and has a clear personal interest in the matter. It is not necessary because (i) there is no good reason to think that the proceedings will be discontinued if the PCO is not made (indeed the evidence may be read as pointing in the other direction) and (ii) there is no reason to suppose that the claimant's liability for costs in this managed litigation would be more than the cap sought."
The claimant sought a reconsideration of that refusal when appearing before Ouseley J on 25 April for directions. The judge ruled that, since by agreement the parties had sought a ruling on the papers, the High Court had no further role to perform save to consider an application for permission to appeal to this court. Ouseley J, upon the making of that application, granted permission observing that the public and private interest ground was arguable, as was the issue of whether Mr Ockleton had been right to rule that the Law Society's indemnity would be adequate in any event.
The landscape in which the application had been made altered somewhat during the hearing before Ouseley J. The judge made an order that grounds 1 and 2 of the amended claim, in which the lawfulness of the operation of the exceptional funding scheme in general was under challenge, should be determined separately from ground 3 which challenged the decision made in the claimant's case specifically. Ground 3 would be considered in the joint hearing ordered by Turner J listed on Tuesday next, 13 May. Permission was given for the amendment of the claim on the terms of grounds 1 and 2. Further directions for the hearing of those grounds were reserved to the judge hearing the case on Tuesday.
I now turn to the grounds of appeal. The...
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