R Faulkner v Director of Legal Aid Casework
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 08 March 2016 |
| Neutral Citation | [2016] EWHC 717 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2423/2015 |
| Date | 08 March 2016 |
[2016] EWHC 717 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mostyn
CO/2423/2015
Mr Hugh Southey QC and Mr Jude Bunting (instructed by Irwin Mitchell) appeared on behalf of the Claimant
Mr Paul Nicholls QC and Mr Malcolm Bindling (instructed by Legal Aid Agency) appeared on behalf of the Defendant
Daniel Faulkner makes a claim in judicial review proceedings concerning a sum of £6,500. This sum of £6,500 was awarded to him in damages for unlawful State detention in contravention of Article 5 of the European Convention on Human Rights by the Supreme Court on 1 May 2013. The question that falls for decision is whether Mr Faulkner should receive that sum of £6,500 intact or whether it should be subjected to the Legal Aid Statutory Charge which would result in him receiving nothing.
The history up to 1 May 2013 is fully encapsulated in the Supreme Court judgments, particularly that of Lord Reed, found under the Neutral Citation Number [2013] UKSC 23. The decision of the Supreme Court was to allow the appeal of the Parole Board and to dismiss the cross-appeal of Mr Faulkner. The award of the Court of Appeal of £10,000 damages for breach of Article 5 was reduced to £6,500.
Inevitably, there followed a dispute about costs. The Parole Board accepted that the costs awarded in favour of Mr Faulkner made by the Court of Appeal — which was that they should pay his costs both in the Court of Appeal and at first instance — should stand. However there was no agreement reached about the outcome on costs in the Supreme Court.
Both parties made extensive written submissions. Mr Faulkner's submissions, drafted by Mr Southey QC, are dated 29 April 2014. In those submissions Mr Faulkner sought an order for costs in his favour even though he had lost the case in the Supreme Court.
In those written submissions (at paragraph 3.3) Mr Southey said:
"3.3 However, in this case, the practical results of there being no order for costs in Mr Faulkner's favour would be the same, even if he were not legally aided. That is because the practical effect of such an order would be to effectively wipe out the award of damages in his favour:
3.3.1 In the event that Mr Faulkner had brought this litigation with the benefit of private funding, the effect of there being no order as to costs or an order for costs against him would be that the damages he was awarded would be reduced to zero as he would either have to bear his own legal costs or pay the costs of an agent of the state, in this case the Parole Board;
3.3.2 Given that Mr Faulkner brings this litigation with the benefit of public funding from the Legal Services Commission, the effect of there being no order as to costs or an order for costs against him would also be that the damages he was awarded would be reduced to zero. In the event that an order for costs were made against him, he would have to pay the costs of an agent of the state, in this case the Parole Board. In the event that no order as to costs were made, Mr Faulkner would still lose his damages through the likely payment of the ' statutory charge'.
…..
3.4.4 Pursuant to Regulation 47 (3) of the [Community Legal Service (Financial) Regulations 2000, SI 2000 No 516], the Legal Services Commission may, if it considers it equitable to do so, waive some or all of the amount of the statutory charge. Regulation 47 (2) of the 2000 Regulations provides that the Legal Services Commission will only do so if (a) it funds legal representation in proceedings which it considers have a significant point of public interest and (b) the Commission considers it cost effective to fund those services for a specified claimant or claimants, but not for other claimants or potential claimants who might benefit from the litigation. The Legal Services Commission has not given any indication to Mr Faulkner that it will waive some or all of the amount of the statutory charge in this case."
Finally, I quote from paragraph 3.6 of the written submissions which is in there terms:
"3.6 Given these factors, it would be unjust and unfair for there to be no order for costs in Mr Faulkner's favour. It would be plainly unfair for Mr Faulkner to obtain no real remedy from these proceedings due to the operation of the ' statutory charge' in circumstances in which (a) the court has recognised that he should receive £6,500 in damages as a result of breach of Article 5 (4) that led to a loss of conditional liberty and (b) a large number of other litigants will now be able to fully litigate their claims as a result of Mr Faulkner's conduct of this appeal."
That was the primary case made on behalf of Mr Faulkner, but that was not everything that was contained in the submissions to the Supreme Court because in paragraph 4.3 Mr Southey advanced an extensive legal argument based on decisions of the Strasbourg Court — in fact, I think he cited twelve cases from Strasbourg in total — as to why it would be a violation of Mr Faulkner's human rights were he not to receive in his favour an order for costs. It is fair to observe that those arguments are the same as the arguments which are advanced now before me. In paragraphs 4.4 and 4.5 reference was made to the decision of the Strasbourg Court of Scordino v Italy (No 1) [2007] 45 EHRR. There was specific reference made to paragraph 201 of that decision where the Strasbourg Court held as follows:
"201 ….. the Court finds it reasonable that in this type of proceedings where the State, on account of the poor organisation of its judicial system, forces litigants — to some extent — to have recourse to a compensatory remedy, the rules regarding legal costs may be different and thus avoid placing an excessive burden on litigants where their action is justified. It might appear paradoxical that, by imposing various taxes — payable prior to the lodging of an application or after the decision — the State takes away with one hand what it has awarded with the other to repair a breach of the Convention. Nor should the costs be excessive and constitute an unreasonable restriction on the right to lodge such an application and thus an infringement of the right of access to a tribunal."
It was based on that decision as well as analysis of the other cases there referred to that the conclusion was reached in paragraph 4.9.3 in these terms:
"4.9.3 If no order for costs is made in Mr Faulkner's favour, he will be in a position in which one agent of the state (the Legal Services Commission) takes away with one hand what another part of the state has awarded with the other to repair a breach of article 5 (4). This is because, as set out above, the application of the ' statutory charge' is likely to operate so as to remove any damages that Mr Faulkner obtains."
It is reasonable for me to note that the tenor of those submissions was that whilst acknowledgement was paid to the power, so it was asserted, within Regulation 47 (3) of the 2000 Regulations, to which I have referred, to waive the statutory charge, it was an unlikely event to occur and therefore justice demanded that the Supreme Court should not make an order for costs against him, but rather make an order for costs in his favour for otherwise events would unfold which would result in the statutory charge consuming to extinction his entire award.
The Parole Board responded in writing on 13 May 2014. They took a traditional line encapsulated by the submissions in paragraph 13 which were in these terms:
"13 In short, the Board was clearly the successful party. It succeeded on the question of principle raised by its own appeal, namely that an award of £10,000 was substantially out of line with Strasbourg authority, and it succeeded in achieving a substantial reduction in the sum of damages awarded. It succeeded entirely in resisting Mr Faulkner's cross-appeal on quantum, to the effect that £10,000 was too low, and also succeeded in resisting all of his alternative arguments, including some that were raised for the first time in this court. The Board is the successful party in this appeal, and, a fortiori, Mr Faulkner was not. Costs should follow the event."
That was the Board's primary position.
However the Parole Board went on, as one might expect, to cover all its bases should that primary argument not be accepted. In paragraphs 25 to 28 it advanced its secondary or reserve argument in these terms:
"25 If, contrary to this, the Court has some sympathy with Mr Faulkner's position then it must in any event balance any unfairness to him against the unfairness to the Board of requiring it to bear the costs of an unsuccessful litigant in a case in which the Board itself has been successful. The consequence to the Board would be considerably greater than £6,500. It would involve both the loss of the ability to recover its own costs against the LAA, and a requirement to pay Mr Faulkner's full costs (presumably at commercial rather than legal aid rates). As the court is well aware, the Board is a public body with limited resources, including a limited litigation budget. It is wrong in principle that it should be required, notwithstanding its success in this appeal, to bear the full costs of the appeal in order to provide a benefit to Mr Faulkner which he himself chose to risk losing.
26 In this regard, it may be noted that, if the Court accedes to Mr Faulkner's argument, the main beneficiary of that will be the LAA, which will...
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