The Queen (on the Application of Esther Louise Leighton) v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 19 February 2020 |
| Neutral Citation | [2020] EWHC 336 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1864/2019 |
| Date | 19 February 2020 |
[2020] EWHC 336 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cavanagh
Case No: CO/1864/2019
and
Karon Monaghan QC (instructed by Deighton Pierce Glynn) for the Claimant
Jonathan Auburn and Rupert Paines (instructed by Government Legal Department) for the Defendant
Catherine Casserley (instructed by Fry Law) for the Intervener (written submissions only)
Hearing date: 28 January 2020
Approved Judgment
Introduction
This application for judicial review is brought by Ms Leighton, the Claimant, to challenge an asserted decision of the Defendant not to extend Qualified One-Way Costs-Shifting (“QOCS”) to discrimination claims in the County Court and/or the Defendant's failure to extend QOCS to such claims. Permission to apply for judicial review was granted by Edis J on 8 August 2019.
The Claimant contends that the decision or failure at issue is contained in or reflected by the contents of a document entitled “Post-Implementation Review of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO), Civil Litigation Funding and Costs.” (“the Part 2 PIR”). The Part 2 PIR was published by the Ministry of Justice (“MOJ”) on 7 February 2019, following a review of the operation of certain aspects of LASPO. The review involved a consultation exercise. The Defendant contends that no decision has yet been taken as to whether to extend QOCS, or some other form of costs protection, to discrimination claims in the County Court.
The Claimant is a disabled person within the meaning of the Equality Act 2010 (“ EA 2010”), section 6. She is a full-time wheelchair user. Over the last few years, she has frequently issued proceedings in the County Court, mainly as a litigant in person, against service providers. These claims have mostly taken the form of complaints that shops, cafes, etc have discriminated against her by not providing ramps for wheelchair users, meaning that wheelchair users cannot gain access to the premises. This is potentially in breach of the statutory duty to make reasonable adjustments in relation to service provision, which is to be found in the EA 2010, section 29, read with section 21 and Schedule 2 of the Act.
I will summarise the issue that is at the heart of these proceedings in greater detail a little later in this judgment. In essence, however, the claim is concerned with the costs regime that applies to discrimination claims relating to the provision of services, when such claims are allocated to the fast-track and multi-track in the County Court (the County Court is the forum for discrimination claims outside the employment and non-disability education fields). As a result of reforms that were introduced by LASPO, it is no longer possible for a Court to order an unsuccessful defendant in such proceedings to pay the “success fee” to which a successful claimant's lawyers may be entitled if the claim succeeds and the lawyers are instructed under a Conditional Fee Agreement (“CFA”), or to pay the cost of After the Event (“ATE”) insurance premiums. For reasons that I will explain, this means, the Claimant says, that disabled persons like her who wish to take legal proceedings to enforce their rights against service providers face two very serious impediments. The first is that if their claims end up in the fast-track or the multi-track (rather than the small claims track, in which costs are not usually recoverable), and they do not qualify for legal aid, they are at risk of an adverse costs order. Given that the damages recoverable for claims such as these tend to be small, but the costs incurred by defendants may be significant, this operates as a real deterrent. Claimants cannot realistically protect themselves by using ATE insurance, because the cost of the premium will be prohibitive, especially if it cannot be recovered by means of a costs award against the defendant. The second impediment is that it is very difficult, and may be impossible, for a claimant in a disability discrimination claim in the County Court to find solicitors and counsel who are prepared to represent them. Ordinarily, solicitors and counsel in such cases will seek to be paid by means of a CFA, but, as the success fees which are a central feature of CFAs can no longer be passed on to defendants, and damages are generally low, this means that the lawyers cannot be confident that their clients will be able to pay the success fee, even if they win. The Claimant says that she is now effectively deterred from seeking to enforce her rights as a disabled person in relation to the provision of services in the County Court.
These problems are not unique to discrimination cases. In the personal injury field, their effects have been mitigated by QOCS. In short, the effect of QOCS is that the claimant knows, when the litigation begins, that, unless s/he behaves wholly unreasonably or fraudulently, s/he will not be required to pay the defendant's costs if the claim is unsuccessful (unless the claimant recovers some damages, in which case the costs will not exceed the amount of the damages), but the defendant will be required to pay the claimant's costs if the claimant is successful. QOCS was introduced for personal injury claims by changes to the Civil Procedure Rules (“CPR”), in CPR r44 13–17. Outside the personal injury field, the changes in LASPO, which generally worked to the disadvantage of claimants, were not mitigated by the introduction of QOCS.
The operation and impact of LASPO was reviewed by the Ministry of Justice in the Part 2 PIR in 2019, some six years after the changes came into effect. The Part 2 PIR dealt briefly with the question whether costs protection, which might include QOCS, should be extended to discrimination claims. The Claimant says that the effect of the Part 2 PIR was that the Defendant took a decision not to extend QOCS to discrimination claims. The Claimant submits that this decision was unlawful on public law and/or Human Rights grounds. Alternatively, the Claimant says that, in any event, even if no positive decision was taken at the time of the Part 2 PIR, it is clear that the Defendant has failed to extend QOCS to discrimination cases and this, too, is unlawful.
The Claimant relies on five grounds. These are that the decision not to extend QOCS to discrimination claims and/or in failing to extend QOCS to discrimination cases was unlawful because:
(1) The Defendant failed to comply with the Public Sector Equality Duty;
(2) The Defendant (a) acted irrationally, (b) failed to take account of relevant considerations, and (c) failed in his duty of inquiry;
(3) The Defendant is in breach of Article 6 of the European Convention on Human Rights (“ECHR”), introduced into UK law by Schedule 1 to the Human Rights Act 1998;
(4) The Defendant is in breach of Article 14 of the ECHR, read with Article 6; and/or
(5) The Defendant is in breach of the common law right of access to a court.
The Defendant's main argument in opposition to the Claimant's claim is that he has not yet taken a decision as to whether or not to extend some type of costs protection, of which QOCS is only one form, to discrimination claims. The Defendant says that this is under active consideration, though it is likely to be some time before a decision is taken. Therefore, the Defendant submits, the argument based on the proposition that a decision on this issue has already been taken is misconceived. In addition, the Defendant submits that the challenge on the basis that he has acted unlawfully by failing to extend QOCS to discrimination cases is premised on the existence of a mandatory obligation to provide for QOCS in discrimination cases. The Defendant submits that none of the five arguments set out in the preceding paragraph comes anywhere near to providing for such an obligation. The Claimant contends that the Defendant is not entitled to advance this latter argument, because it is not pleaded in the Defendant's Detailed Grounds. The sole defence relied upon in the Detailed Grounds, the Claimant says, is that no decision on this matter has yet been taken.
The Claimant has been represented before me by Karon Monaghan QC, and the Defendant has been represented by Jonathan Auburn and Rupert Paines. I am grateful to all counsel for their very helpful submissions, both written and oral.
In addition, I have received and taken into account written submissions by Catherine Casserley of counsel on behalf of an Intervener, Inclusion London. The Intervener is a charity which is run by and for deaf and disabled people, which promotes equality and inclusion by supporting Deaf and Disabled People's Organisations, and by campaigning for rights for deaf and disabled people in the UK. Whilst it is based in London, the Intervener campaigns across the UK. Neither the Claimant nor the Defendant objected to the participation in these proceedings by the Intervener, which was limited to written submissions, though the Defendant submits that the points made by the Intervener do not materially assist the Court in resolving the issues before it. I have therefore granted permission to intervene. In general, the submissions made on behalf of the Intervener cover similar ground to the submissions on behalf of the Claimant, but the Intervener also makes additional submissions in reliance upon the UN Convention on the Rights of Persons with Disabilities (“UNCRPD”). I will deal with these submissions later in my judgment.
I should add that the Defendant named on the Claim Form is the Secretary of State for Justice. Of course, the same person holds the offices of Secretary of State...
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