Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors, Court of Appeal - Civil Division, December 15, 2014, [2014] EWCA Civ 1622

Resolution Date:December 15, 2014
Issuing Organization:Civil Division
Actores:Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors
 
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Case Nos: C1/2014/2240, 2241, 2242,

2243, 2244, 2245, 2271 & 2272

Neutral Citation Number: [2014] EWCA Civ 1622

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Collins

[2014] EWHC 1840 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/12/2014

Before :

THE MASTER OF THE ROLLS

LORD JUSTICE RICHARDS

and

LORD JUSTICE SULLIVAN

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Between :

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Mr Martin Chamberlain QC, Ms Sarah Love and Mr Malcolm Birdling (instructed by The Treasury Solicitor and Legal Aid Agency Central Legal Team ) for the Appellants

Mr Richard Drabble QC, Mr Ranjiv Khubber and Mr Joseph Markus (instructed by Turpin Miller LLP) for Ms Gudanaviciene

Ms Phillippa Kaufmann QC and Mr Chris Buttler (instructed by Public Law Project) for IS

Mr Richard Drabble QC, Mr Tim Buley and Mr Alistair Mills (instructed by Duncan Lewis & Co) for Mr Reis

Mr Paul Bowen QC and Ms Alison Pickup (instructed by Islington Law Centre) for B

Mr Ashley Underwood QC and Mr Adam Tear (instructed by Duncan Lewis & Co) for Ms Edgehill

Mr Paul Bowen QC and Ms Catherine Meredith (instructed by ATLEU) for LS

Mr Guy S Goodwin-Gill and Ms Samantha Knights (instructed by Freshfields Bruckhaus Deringer LLP) for The British Red Cross Society

Hearing dates : 27, 28, 29 and 31 October 2014

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Judgment

TABLE OF CONTENTS

Master of the Rolls:

INTRODUCTION

  1. This is the judgment of the court to which each of its members has contributed.

  2. These appeals all concern decisions by the Director of Legal Aid Casework (``the Director'') to refuse applications for civil legal aid. The decisions were made under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (``LASPO'') and in the light of the Lord Chancellor's Exceptional Funding Guidance (Non-Inquests) (``the Guidance''). In each case, the Director decided to refuse applications for exceptional case funding (``ECF'') under section 10 of LASPO.

  3. On 30 January 2014, Turner J ordered that the cases be listed together inter alia, because they raised common issues as to the circumstances in which the European Convention on Human Rights (``the Convention'') and the EU Charter of Fundamental Rights (``the Charter'') required the provision of legal aid in civil cases.

  4. Collins J granted judicial review in each of the six cases that were before him. As we shall explain, the appellants have not pursued an appeal in the case of IS. But they appeal the decisions in the cases of Gudanaviciene, LS, Reis, B and Edgehill. The judge held that the Guidance was unlawful in that it misstated: (i) the circumstances in which legal aid in civil cases must be made available under section 10(3) of LASPO; (ii) the test for determining when article 6 of the Convention and article 47 of the Charter require the provision of legal aid in civil cases; and (iii) the circumstances in which article 8 of the Convention requires the provision of legal aid in civil cases generally and in immigration cases in particular. Applying what he considered to be the correct test to the facts of each case, he concluded in the cases of Gudanaviciene, Reis, B and Edgehill that the Convention required the provision of legal aid; and in the cases of IS and LS that the decisions should be reconsidered by the Director. In the case of B, he also found that civil legal aid should be made available because the services to which the application related were ``in scope'' i.e. they fell within para 30 of Part 1 of Schedule 1 to LASPO.

  5. We shall summarise the issues that arise on these appeals after we have set out the relevant statutory material.

    LASPO

  6. Part 1 of LASPO deals with legal aid. Its effect is to limit the circumstances in which civil legal aid can be granted. Section 9 of LASPO provides:

    "(1) Civil legal services are to be available to an individual under this Part if -

    (a) they are civil legal services described in Part 1 of Schedule 1, and

    (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination.)"

  7. The civil legal services described in Part 1 of Schedule 1 are therefore in scope for legal aid, subject to specific exclusions in Parts 2 and 3. Paras 30 and 32 of Part 1 are relevant to the appeals in respect of B and LS respectively. We will set out the material parts of those paragraphs when considering their cases.

  8. Section 10 of LASPO is central to these appeals. It is headed "Exceptional cases" and so far as material provides:

    (1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) ... is satisfied.

    (2) This subsection is satisfied where the Director -

    (a) has made an exceptional case determination in relation to the individual and the services, and

    (b) has determined that the individual qualifies for the services in accordance with this Part,

    (and has not withdrawn either determination).

    (3) For the purposes of subsection (2), an exceptional case determination is a determination -

    (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of -

    (i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or

    (ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

    (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

  9. The Explanatory Notes to section 10(3) state:

    ``107. It will be necessary to make legal services available to an individual where the withholding of such services would clearly amount to a breach of Article 6..... There will be a breach of the enforceable EU rights of the individual to the provision of legal services where the withholding of such services would be clearly contrary to the rights reaffirmed by Article 47 of the Charter of Fundamental Rights....

  10. Subsection (3)(b) provides that an exceptional case determination may also be made where the Director considers that the failure to provide legal services would not necessarily amount to a breach of an individual's rights, but that it is nevertheless appropriate for the services to be made available, having regard to the risk of such a breach occurring.''

  11. Section 4 of LASPO requires the Lord Chancellor to designate a civil servant as Director. Section 4(2) obliges the Director to:

    "(a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and

    (b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions."

    The Guidance

  12. Para 1 of the Guidance provides that the Director must have regard to the Guidance in determining whether civil legal services are to be made available under section 10(2) and (3) of LASPO and that as, in practice, applications will be considered by caseworkers on the Director's behalf, the guidance is addressed to caseworkers. Para 2 states that:

    ``This guidance sets out some of the factors that caseworkers should take into account in deciding exceptional funding applications under section 10(2) and (3) of the Act. It is not intended to be an exhaustive account of those factors. In particular, it is not intended to replace the need for consideration of representations in individual cases and new case law that arises. Applications should be considered on a case by case basis. ''

  13. As regards section 10(3)(b) of LASPO, the Guidance states:

    ``6. Section 10(3)(b) does not provide a general power to fund cases that fall outside the scope of legal aid. It is to be used for rare cases and provides that an exceptional case determination may be made where the risk of the breach of the rights set out in section 10(3)(a) is such that it is appropriate to fund.

  14. The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).''

  15. Section A is entitled ``The right to legal aid under the ECHR''. The Guidance states:

    ``9. Whereas Article 6 ECHR provides a specific right to legal assistance in the context of criminal proceedings, the Convention contains no such specific right in relation to civil proceedings. Rather, the ECtHR has recognised that there are very limited circumstances in which the failure of the State to provide civil legal aid may amount to breach of an individual's rights under the European Convention on Human Rights.

  16. Caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant's rights under Article 6(1) ECHR. As set out below, the threshold for such a breach is very high.''

  17. Under the heading ``Article 6(1) ECHR'', the Guidance states:

    ``12. Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person's civil rights and obligations. In certain very...

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