The Queen (on the application of Minton Morrill Solicitors) v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 24 March 2017 |
| Neutral Citation | [2017] EWHC 612 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2313/2016 |
| Date | 24 March 2017 |
[2017] EWHC 612 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
Judgment handed down at:
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
Case No: CO/2313/2016
Mr Alex Offer (instructed by Minton Morrill Solicitors) for the Claimant
Mr David Lowe (instructed by Government Legal Department) for the Defendant
Hearing date: 26 January 2017
Judgment Approved
Introduction
In this case I have to decide whether the Legal Aid Agency was right to refuse to allow payments claimed by the claimant solicitors for work done on certain applications to the European Court of Human Rights (ECtHR). That depends on whether the applicable legislation excluded funding for work done on such applications. The claimant submitted claims for work done on two such applications. Both were turned down.
The claims were refused in late 2015 and early 2016. An appeal in the first case failed in early 2016. An appeal in the second case is still outstanding. The claimant seeks orders quashing those decisions and a declaration that legal aid for applications to the ECtHR at Strasbourg is available under the Access to Justice Act 1999 (the 1999 Act) and its successor, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
The defendant, the Lord Chancellor, submits that the two statutes do not permit legal aid funding for work done on applications to the ECtHR because the work is a service "relating to… law other than that of England and Wales…"; and because the law applicable to claims in the ECtHR is not "relevant for determining any issue relating to the law of England and Wales". Those words are taken from section 19(1) of the 1999 Act, and are almost the same as the relevant words appearing in section 32 of LASPO, which (it is agreed) bear the same meaning.
I therefore have to decide whether preparing claims brought in the ECtHR is a service "relating to" the law of England and Wales; and if not, whether the law applicable to such claims is "relevant for determining" an issue of English or Welsh law. If I refer below to the law of England, I do so purely for brevity, without any disrespect and without thereby excluding the law of Wales.
The claimant used to be called Lester Morrill Solicitors. Now it is called Minton Morrill Solicitors. A consent order was made in this case permitting the change of name.
The Facts
The first claim relates to "JL", as I shall call her following an anonymity order made in domestic proceedings before she applied to the ECtHR. She made a claim in the High Court in 2009, challenging possession proceedings against her. When it failed, she appealed unsuccessfully to the Court of Appeal, which refused permission on the papers in September 2009 and at a hearing in January 2010.
JL was granted "legal help" in October 2010 in the matter. The applicable statute was then the 1999 Act. LASPO had not yet been enacted, nor entered into force. Aided by the claimant, she filed an application to the ECtHR in November 2010. She asserted that the possession proceedings against her and the grant of a possession order made against her, violated her rights under articles 8 and 14 of, and article 1 of the first protocol to, the European Convention on Human Rights and Fundamental Freedoms (the Convention, or the European Convention).
In September 2014, the application was declared inadmissible. No order in respect of costs was (or could be) made by the ECtHR. The claimant claimed a little over £3,000 (including disbursements and VAT) for the work it had done on the application. The Legal Aid Agency (the Agency), acting on behalf of the Lord Chancellor, had by then taken over from the Legal Services Commission (from 1 April 2013, pursuant to section 38 of LASPO).
The Agency refused the claim on the ground that the funding had been sought only to apply to the ECtHR and the law applied there was not part of the law of England and Wales and not within the scope of section 19 of the 1999 Act. The claimant unsuccessfully appealed; first in October 2015 to an internal reviewer and then in January 2016 to an independent assessor, who upheld the refusal in a letter of 5 February 2016.
The second claim relates to a Ms Kathleen Slattery. She brought County Court proceedings in 2011, challenging a decision of a local authority that certain accommodation was "suitable" to meet her housing needs. The County Court dismissed her claim in December 2012. In July 2013, she was given permission to appeal on some but not all her grounds. Her appeal was heard in December 2013 and was dismissed.
Ms Slattery unsuccessfully applied to the Court of Appeal for permission to appeal to the Supreme Court. She did not have funding to apply to the Supreme Court for permission. She was granted legal help in January 2014, after section 32 of LASPO had entered into force, replacing section 19 of the 1999 Act.
Aided by the claimant, she made two applications to the ECtHR in May 2014, to preserve time limits. She is an Irish traveller and claimed that an offer of "bricks and mortar" accommodation, the decision that it was "suitable" and the lack of a remedy in the domestic courts, violated her rights under articles 8, 13 and 14 of the Convention.
Both her applications were declared inadmissible in November 2014. Again represented by the claimant, she made a further application in February 2015, which has yet to be determined. The claimant claimed payment of nearly £6,800, plus disbursements of £134.40. By a letter of 21 January 2016, the Agency refused the claim for the same reasons as in the case of JL.
An internal appeal against that decision to another part of the Agency was, according to the claimant, brought in February 2016. The Agency has not found any record of the appeal and is looking for it. In any case, the outcome of the appeal may be influenced by the outcome of this application for judicial review. Meanwhile, after the usual pre-action correspondence, the present claim was issued on 4 May 2016.
It was brought on three grounds. Andrews J granted permission on two of them, which are before me for decision. The issues raised are of statutory construction, as already explained. She found unarguable a challenge founded on alleged incompatibility between the statutory regime and the obligations of the United Kingdom under the Convention. At an oral hearing, Blake J agreed.
The Statutory Provisions
Under the Legal Aid Act 1988 (the 1988 Act), a decade before the enactment of the Human Rights Act 1998 (the HRA), legal aid was available for "advice" and "assistance". Advice had to be "on the application of English law …". Assistance had to be for "steps a person might take, including steps with respect to proceedings, having regard to the application of English law to any particular circumstances …" (section 2(2) and (3)). Civil legal aid could be available for "such proceedings before courts or tribunals or at statutory enquiries in England and Wales" as specified elsewhere (section 14(1)).
There was no provision in the 1988 Act for legal aid to be available for an application to the ECtHR, though such applications were regularly made. An opinion on an issue of foreign law relevant in legally aided English domestic proceedings, like any expert opinion, could be obtained if allowed as a disbursement under section 10(3), which made provision in respect of disbursements including counsel's fees.
I interpose here that the ECtHR, it is agreed, runs its own legal aid scheme. It includes means testing and does not allow financial support to be provided to an applicant unless and until her or his application has been declared admissible. It was therefore not available to either JL or Ms Slattery. If granted, it does not retrospectively cover pre-application work. Its existence contributed substantially to the refusal of permission to rely on the third proposed ground of challenge.
The 1999 Act replaced the 1988 Act from 1 April 2000, until the advent of LASPO from 1 April 2013. Under the 1999 Act, the Legal Services Commission (the Commission) administered legal aid of various kinds and could determine which cases to fund, subject to exceptions. Certain forms of domestic proceedings were excluded from the scope of legal aid, unless the Lord Chancellor authorised it in a particular case. Funding could normally be provided only to individuals who qualified on the basis of limited means.
Section 19 of the 1999 Act bore the heading "Foreign law", and provided (from 2006 until 31 March 2013):
(1) The Commission may not fund as part of the Community Legal Service or Criminal Defence Service services relating to any law other than that of England and Wales, unless any such law is relevant for determining any issue relating to the law of England and Wales.
(2) But the Lord Chancellor may, if it appears to him necessary to do so for the purpose of fulfilling any obligation imposed on the United Kingdom by any international agreement, by order specify that there may be funded as part of the Community Legal Service or Criminal Defence Service (or both) services relating to the application of such other law as may be specified in the order.
From 1 April 2013, the provisions in the 1999 Act were replaced by those in Part 1 of LASPO. Mr Lowe, for the Lord Chancellor, described the new scheme as "prescriptive rather than permissive". Civil legal services of particular types could be funded, conditioned by means and merits tests, and subject to exceptional funding being necessary or appropriate to avoid a breach or risk of breach of a person's Convention rights or enforceable rights...
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