The High Court has held that the roundly criticised exceptional case funding scheme fails in what it is supposed to do: protect unrepresented litigants from unfairness. Oliver Carter and Rachel Francis welcome this decision.
At the beginning of July, YLAL hosted a training seminar on exceptional case funding (ECF) under LASPO at Brick Court Chambers following R (Gudanaviciene and others) v Director of Legal Aid Casework and another  EWCA Civ 1622, 15 December 2014. We were very fortunate to hear from Paul Bowen QC and Alison Pickup, both of whom were instructed in the case.
Following the removal by LASPO of several areas of law from the scope of legal aid, s10 is the purported ‘safety net’, intended to provide public funding for legal representation where a failure to do so would result in a breach of rights under the European Convention on Human Rights or EU law. The ECF scheme has been subject to sustained criticism by practitioners for its complex and time-consuming application process and derisory success rate for applications in non-inquest cases: although it is said that 13 per cent of applications in non-inquest cases are now granted, in the first year of the scheme the success rate was just 1 per cent.
At the time of the seminar, judgment was awaited in R (IS) v Director of Legal Aid Casework  EWHC 1965 (Admin), 15 July 2015, a systemic challenge to the operation of the ECF scheme brought by the Public Law Project (PLP), with the official solicitor acting as litigation friend to IS, one of the original claimants in Gudanaviciene. We discuss the judgment in IS below.
Opening the session, Paul first provided an overview of the history of legal aid. He then discussed the developing right to free legal assistance in convention case-law, before Alison – fresh from being crowned legal aid barrister of the year at the Legal Aid Lawyer of the Year awards – continued this theme with reference to Gudanaviciene, in which the Court of Appeal upheld the Administrative Court’s judgment that the lord chancellor’s guidance issued in relation to ECF was unlawful as it was incompatible with article 6(1) of the convention, and with article 8 in the context of immigration cases.
The Court of Appeal held that the guidance had impermissibly sent a clear signal to Legal Aid Agency (LAA) caseworkers ‘that the refusal of legal aid will amount to a breach only in rare and extreme cases’ and that it incorrectly stated that ‘there is nothing in the current case law that would put the UK under a legal obligation to provide legal aid in immigration proceedings in order to meet its procedural obligations under article 8’. Although the judgment in Gudanaviciene was handed down in December 2014, it was not until June 2015 that the lord chancellor issued revised guidance.
Too complex and inflexible
IS proceeded as a test case due to the public interest in the issues raised, although it had become academic for the claimant as a result of the Gudanaviciene judgment. IS, a Nigerian national, is blind, has profound cognitive impairment and lacked capacity to engage in litigation. Nevertheless, his application for ECF had been refused.
PLP submitted, on IS’s behalf, that the ECF scheme is insufficiently accessible as the prescribed form is too complex and the LAA requires excessive information. Collins J noted that even ‘experienced solicitors have difficulty with the forms’ and that of 62 applications for ECF made by non-lawyers in the first nine months of the scheme, only one was successful. The court expressed its view that the ECF form should be simplified for practitioners and a separate form for unrepresented applicants should be prescribed.
Collins J found a ‘further and fundamental defect in the form and the scheme’: legal help is needed to ‘fill the gap created by the removal of the Green Form scheme’ and allow solicitors to assess whether a client has a case that should be granted funding under LASPO s10. The court referred to the evidence that ‘solicitors are for good reason not prepared to engage in work for which payment is not likely to be received’; without some such help, there is a risk of a breach of human rights.
Additional defects for the court were the ‘lack of an adequate system to deal with urgent applications’ and the rigidity of the merits test, which unreasonably requires a greater than even chance of success and has been erroneously applied by the LAA. Collins J, addressing concerns expressed by the official solicitor, recognised that it ‘must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned’.
Not working as intended
The court concluded that ECF ‘is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness’. The scheme ‘is not properly providing the safety net which s10 is supposed to provide’ and, as a result, ‘those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended’. It is not in accordance with LASPO s10 as ‘it does not ensure that applicants’ human rights are not breached or are not likely to be breached’.
There must, therefore, be significant changes to the ECF scheme to comply with judgment, in particular to the application forms. However, we understand the Ministry of Justice is seeking permission to appeal. Whether any changes will be made pending an appeal remains to be seen, but Gudanaviciene and IS both mark further successes in the campaign to ameliorate, through litigation, the effect of the government’s legal aid cuts.
YLAL members Carita Thomas and Daniel Anderson have set up an online discussion group for advisers preparing ECF applications. If you are interested in joining, please contact Carita (email@example.com
) or Daniel (firstname.lastname@example.org
) with details of your place of work or study.