Legal aid safety net scheme ‘lawful’, Court of Appeal rules
The Court of Appeal has overturned the High Court’s ruling that the exceptional case funding (ECF) scheme was unlawful.
In Director of Legal Aid Casework and another v IS  EWCA Civ 464, 20 May 2016, Lord Justice Laws ruled that the scheme ‘is not inherently or systematically unfair’. He said he recognised that the ‘complexity’ of the application form meant that claimants were ‘heavily dependent’ on lawyers to complete it, but said the evidence does not justify the conclusion that the scheme is ‘outside the range of lawful choices open to the Lord Chancellor’. He noted ‘troubling’ difficulties with it, adding: ‘No doubt the [Legal Aid Agency] and the Lord Chancellor will be astute to look for improvements.’
Dissenting, Lord Justice Briggs said the ‘defects’ in the scheme were ‘systematic and inherent’ and rendered it ‘unfair’. In particular he noted that the application form ‘is addressed to, and plainly designed only to be completed by, lawyers’ and that there is demonstrably ‘inadequate’ guidance for litigants in person.
Briggs LJ noted that the scheme provides no funding for the ‘substantial time and effort’ required for a lawyer to complete the necessary forms, and the 13 per cent success rate for ECF applications makes it uneconomic for lawyers to undertake them. ‘There are therefore bound to be many potential applicants for ECF whose circumstances would qualify them to receive it, but who are disabled from doing so,’ he said.
The Court of Appeal’s ruling overturned last year’s High Court decision ( EWHC 1965 (Admin)) that the scheme was unlawful because it was ‘far too complex’ and the bar set for claimants to meet the merits test was too high. Welcoming the ruling, a Ministry of Justice spokesman said: ‘We will now consider urgently what steps to take in response to the court’s findings.’
He said: ‘Legal aid is a fundamental part of our justice system, but resources are not limitless. Legal aid is paid for by the taxpayer and at all times we must strive to make sure that public confidence is maintained in the system. As with any other public service, legal aid must be fair to the people who use it, but also fair to the taxpayer who pays for it.’