The claimant, a Nigerian national who lacked capacity to engage in litigation, applied for exceptional case funding pursuant to section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to assist him in making representations to the Home Office to recognise his position in the United Kingdom. The Director of Legal Aid Casework refused his application but the claimant was subsequently granted funding after he successfully claimed judicial review of the refusal on the ground that the guidance issued by the Lord Chancellor and applied by the Director was unlawful. Notwithstanding that grant, the claimant’s remaining challenge to the manner in which the exceptional case funding scheme was operated, which raised important issues of wider application, proceeded effectively as a test case. The claimant’s case was that the operation of the scheme created an unacceptable risk that individuals would be unable to make an effective application under the scheme and would therefore suffer a breach of their Convention rights or European Union rights. The judge allowed the claim, holding that (i) the manner in which the exceptional case funding scheme was operated meant that in practice the safety net intended to be provided by section 10 to enable individuals who would not otherwise qualify for legal aid funding to present their cases effectively without obvious unfairness was not being provided and (ii) the requirement in regulations 5 and 43 of the Civil Legal Aid (Merits Criteria) Regulations 2013 that cases had to demonstrate an even or better than even prospect of success was unreasonable and the method of rating prospects of success was itself unsatisfactory. Accordingly he granted declarations that the exceptional case funding scheme, the 2013 Regulations and the guidance were unlawful.
On the appeal—
Held, appeal allowed. The dividing line between multiple instances of unfairness and an inherent failure in the system was in considerable measure a matter of degree, and therefore of judgment. It was not apparent from the judge’s judgment, as it should have been, that the correct test was applied to the question of whether the system was unfair. The judge’s focus was upon perceived individual deficiencies rather than the application of the test of inherent unfairness to the scheme as a whole. There had been real difficulties and improvements could be made, not least to the exceptional case funding form. However the picture had changed for the better and there had been a learning curve for both the Legal Aid Agency and for providers. While such a judgment was inexact and even impressionistic, the scheme could not be regarded as inherently or systematically unfair. It was also significant that in assessing the legality of legal aid schemes the European Court of Human Rights had had some regard to the challenge posed by limited public resources. Moreover the website and helpline provided in respect of the system was of significant material assistance to potential applicants. The state of the evidence did not justify an across-the-board conclusion that the scheme was of itself so unfair as to lie outside the range of lawful choices open to the Lord Chancellor and the Legal Aid Agency in the administration of section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The extent of the difficulties was however troubling and no doubt the Legal Aid Agency and the Lord Chancellor would be astute to look for improvements, and would do so on a continuing basis. The Civil Legal Aid (Merits Criteria) Regulations 2013 provided a balanced, proportionate approach to the grant of legal aid which could not be condemned as arbitrary. There was an internal review procedure and judicial review was available and effectively deployed. In the form they took at the time of the hearing before judge, the 2013 Regulations were lawful. In respect of the guidance, it was a legitimate purpose of the 2012 Act that the availability of civil legal services be confined to cases judged to be of the greatest need. Accordingly the declarations would be set aside (paras 11, 23, 24, 53–57, 65–66, 68, 70, 72, 73–74, 85, 88).
Richard Hermer QC and Chris Buttler (instructed by Public Law Project) for the claimant.
Martin Chamberlain QC, Cathryn McGahey and Malcolm Birdling (instructed by Central Legal Team, Legal Aid Agency) for the Director of Legal Aid Casework.
Martin Chamberlain QC, Cathryn McGahey and Malcolm Birdling (instructed by Treasury Solicitor) for the Lord Chancellor.