R (on the application of Daniel Faulkner) v Director of Legal Aid Casework
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Longmore,Lord Justice Peter Jackson |
| Judgment Date | 19 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1656 |
| Date | 19 July 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/1797 |
[2018] EWCA Civ 1656
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mostyn
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lord Justice Peter Jackson
and
THE RIGHT HONOURABLE Lady Justice Asplin DBE
Case No: C1/2016/1797
Hugh Southey QC and Jude Bunting (instructed by Juliet Spender, of Irwin Mitchell LLP) for the Appellant
Paul Nicholls QC and Malcolm Birdling (instructed by Central Legal team, Legal Aid Agency) for the Respondent
Hearing date: 5 July 2018
This appeal is concerned with the discretion to waive the Legal Aid “statutory charge” in circumstances in which the charge would be recouped from damages awarded as compensation for a breach of Article 5(4) of the European Convention on Human Rights, as enacted by the Human Rights Act 1998 (“Article 5(4)”).
In 2001, the Appellant, Mr Faulkner was sentenced to custody for life in accordance with section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The tariff period was set at two years and eight and a half months less time spent on remand. The tariff expired in April 2004 and Mr Faulkner became eligible for parole. There were delays in Mr Faulkner's case being referred to and dealt with by the Parole Board. In October 2008, he was granted permission to apply for judicial review of the failure of the Parole Board and the Secretary of State to conduct a review of his detention, in breach of Article 5(4). It was heard in June 2009 and was dismissed. An appeal was allowed by the Court of Appeal ( [2010] EWCA Civ 1434; [2011] HRLR 165). The Court of Appeal held that Mr Faulkner had suffered a breach of his Article 5(4) rights lasting for a period of 10 months as a result of unjustified delays on the part of the Ministry of Justice and accordingly, was entitled to compensation under Article 5(5). In its decision on quantum, ( [2011] EWCA Civ 349; [2011] HRLR 489), the Court of Appeal ordered the Secretary of State to pay Mr Faulkner £10,000 in respect of the breach.
The Parole Board appealed to the Supreme Court on the basis that the award of compensation was excessive and Mr Faulkner cross-appealed against the award on the ground that it was inadequate. He was also granted permission to argue that his detention after his case should have been reviewed by the Parole Board constituted false imprisonment at common law or a violation of Article 5(1) of the Convention. The Parole Board's appeal succeeded and the award of damages was reduced to £6,500. Mr Faulkner's cross-appeal was dismissed. The Parole Board sought its costs of the appeal to the Supreme Court but not any costs below. Mr Faulkner, who had been publicly funded throughout, also sought his costs for reasons which included the fact that without an award in his favour he would not receive any damages despite the award of £6,500 as a result of the “statutory charge” and that such an outcome would be contrary to his human rights. Having considered the parties' submissions, the Supreme Court ordered that Mr Faulkner pay the Parole Board's costs in the Supreme Court in accordance with either section 11 of the Access to Justice Act 1999 or section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the regulations made thereunder.
Curiously, no steps have been taken to enforce the Supreme Court's order for costs. Nevertheless, on 17 April 2014, Mr Faulkner's then solicitors wrote to the Legal Aid Agency (the successor to the Legal Services Commission) to ask that the statutory charge be waived. By a letter of 7 October 2014, the Legal Aid Agency refused the request on the basis that:
“Under Regulation 47 (CLS) Financial Regulations 2000 discretion arises but this is exercised rarely and only in exceptional circumstances. Typically the Agency would select a test case from a number of identical cases and run that case in the interests of public money. This would usually be agreed at the start of the case so as to not penalise the client taking the case potentially for the benefit of others. Paragraph 5.6 of the Funding Code Manual explains the Agency's position in detail.”
(the “Refusal”).
In a subsequent letter dated 17 December 2014, which was in response to Mr Faulkner's letter before claim, the Legal Aid Agency stated that it did not accept that the Decision was susceptible to judicial review in the way which had been suggested. The Legal Aid Agency went on to state that the discretion to waive the statutory charge in cases of wider public interest contained in regulation 47 of the Community Legal Service (Financial) Regulations 2000 (as amended) (the “2000 Regulations”) arises where two conditions are met. The conditions and their effect were described as follows:
“The first is that the case must have been funded in the belief that it has significant wider public interest; the second is that our client chose to fund the case of the particular claimant or claimants on the ground that it was cost effective to do so but not to fund the case of other claimants. These are questions of fact and as the guidance (which you quote) states these conditions must be satisfied at the start of the case, (although the formal discretion is only exercised at the conclusion of the case when damages have been recovered). On the facts as you have presented them, your client does not satisfy these conditions.”
The Legal Aid Agency then clarified that although there was reference to “exceptional circumstances” in the Refusal, “exceptionality” was not the basis for the relevant decision making and that despite the use of the term “[T]ypically” in relation to the selection of a test case in the Refusal, the conditions set out in regulation 47 were the only circumstances in which the discretion to waive the statutory charge arises.
In any event, it is the Refusal itself which was challenged by way of judicial review before Mostyn J on 8 March 2016. Mostyn J dismissed Mr Faulkner's claim for judicial review for the reasons set out in a judgment dated 8 March 2016, the neutral citation of which is [2016] EWHC 717 (Admin) and it is that decision which is the subject of this appeal.
The grounds of appeal are that Mostyn J erred in law by: finding that the Supreme Court had decided that Mr Faulkner's human rights arguments against him and treating the Supreme Court's costs order as determinative of the claim; rejecting the human rights arguments on the basis of flawed reasoning; and adopting the wrong approach to the statutory construction of regulation 47 of the 2000 Regulations.
Before turning to the relevant legal framework, I should add that despite the fact that reference had been made in counsel's opinions on the merits to Mr Faulkner's case including points of wider public or general interest, it is common ground that no one thought about the criteria in regulation 47 of the 2000 Regulations before the litigation was concluded. Although Mr Southey QC on behalf of Mr Faulkner cautioned us about what might be ex post facto reasoning, it is of note that the witness statements by the relevant Legal Aid caseworker, Mr Reddin are consistent with the common ground. Mr Reddin explains his decision-making process when determining whether to grant legal aid in relation to Mr Faulkner's claim. He states that he applied the standard cost/benefit test. In any event, in oral opening, Mr Southey accepted that it was only with hindsight that one may have concluded that Mr Faulkner's case satisfied the criteria in regulation 47 and that one would not have done so at the outset of the litigation.
Legal Framework
The grant of public funding for the purpose of Mr Faulkner's appeal to the Supreme Court was made before the commencement of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 regime. It is, therefore, a “pre-commencement” case for the purposes of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential, Transitional and Saving Provisions) Regulations 2013 and Part 1 of the Access to Justice Act 1999 (the “1999 Act”) and all orders, regulations, guidance, directions or authorisations made or given under the 1999 Act, in so far as they were in force immediately before 15 th April 2013, apply.
The “statutory charge” was to be found in section 10(7) of the 1999 Act. It provided as follows:
“(7) Except so far as regulations otherwise provide, where services have been funded by the Commission for an individual as part of the Community Legal Service—
(a) sums expended by the Commission in funding the services (except to the extent that they are recovered under section 11), and
(b) other sums payable by the individual by virtue of regulations under this section,
shall constitute a first charge on any property recovered or preserved by him (whether for himself or any other person) in any proceedings or in any compromise or settlement of any dispute in connection with which the services were provided.”
Further, regulation 43(1) of the 2000 Regulations provided, where relevant, that: “where any money or property is recovered for a client in a relevant dispute or proceedings, the amount of the statutory charge shall be the aggregate of the sums referred to in section 10(7)(a) and (b) of the [1999] Act.”
The purpose behind the statutory charge was set out at paragraph 2.1 of the Statutory Charge Manual issued by the Legal Aid Agency in April 2014 which is set out at [21] of the judge's judgment as follows:
“1 The statutory charge is designed to:
(a) put legally aided individuals as far as possible in the same position as successful non-legally aided individuals...
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