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Court of Appeal hands down judgment in Exceptional Case Funding challenge

DATE: 15 Dec 2014

[2014] EWCA Civ 1622; [2015] 1 WLR 2247; [2015] 3 All ER 827

The Court of Appeal’s decision concerned appeals by the Director of Legal Aid Casework and the Lord Chancellor against the decision of Collins J in R (Gudanaviciene and Others) v Director of Legal Aid Casework; the Lord Chancellor [2014] EWHC 1840 (Admin).  Collins J had allowed 6 challenges to refusals to grant legal aid funding, and found that aspects of the Lord Chancellor’s Guidance for determination of applications for ECF was unlawful in certain respects.  

The Appellants had appealed in all 6 cases, but withdrew its appeal in the case of IS.  In doing so, it acknowledged that Article 8 of the ECHR could, in certain cases, require the provision legal funding for immigration matters, and for the making of applications (as opposed to where an application has already been rejected), and also that the Guidance was partially unlawful. 

With respect to the remaining 5 cases, the Court of Appeal dismissed the Appellants’ appeals in Gudanaviciene, Reis and B, but allowed them in the cases of LS and Edgehill. 

The Court of Appeal reached a different interpretation of the requirements of s.10(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to that of Collins J.  The Court of Appeal held that s.10(3)(a) required a grant of legal aid in cases where failure to provide such legal aid would constitute a breach of the ECHR or EU law.  There was no need to impose a gloss upon the wording of the statute.  By contrast, in cases where the Director cannot decide whether there would be such a breach, s.10(3)(b) gives him a discretion to grant legal aid where there was a risk of such a breach.  Any risk is sufficient for the discretion to arise, but the greater the risk, the more likely it is that he will view it as appropriate to make a determination. 

The Court of Appeal found that the Lord Chancellor’s Guidance was unlawful, in that it set the bar for the provision of legal aid too high.  The relevant test is the same, whether the source of the right is Article 6 or 8 of the ECHR, or Article 47(3) of the Charter of Fundamental Rights.  The touchstone is “effective access to the court”, but this can be summarised by “obvious unfairness”. 

The Court of Appeal also stressed that, in certain cases, legal advice to someone who may in the event be a litigant in person may be more important than legal representation, for the purposes of affording effective access to justice.  Consideration should therefore be given whether funding should be given for early legal advice, even if representation at a hearing is not viewed to be necessary.  

Richard Drabble QC appeared for Gudanaviciene in the Court of Appeal (having also appeared below).

Richard Drabble QCTim Buley and Alistair Mills appeared for Reis (Tim and Alistair having also appeared below).