See also David Burrows' article, Lord Chancellor’s Guidance on Exceptional Case Funding, published 15 June 2015.
Exceptional case determination: Convention
R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622 affects all applicants for legal aid for any
form of civil proceedings, with family proceedings very much included. It was a
very careful judgment of the full court (Lord Dyson MR, Richards and Sullivan
LJJ). The issue takes an applicant (or his/her adviser) immediately into the
murky ‘quasi-legislation jungle’ (per Wade and Forsyth,
Administrative Law (11th edn, 2014), at p 732) of statutory
guidance. And it reminds the lawyer that every piece of delegated and – as here
– semi-delegated legislation must be tested for lawfulness against its primary
Gudanaviciene that statutory source is
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) s 10, which
is the get-out-of-gaol-free card for any civil proceedings litigant who can
claim that s 10(3) justifies an ‘exceptional case determination’ (ECD), namely
a determination by the Legal Aid Agency (LAA) as follows:
(a) that it is necessary to make [civil legal aid] 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.
Thus s 10(3) explains when an ECD should be made; and that
it becomes exceptional not because of some rarity of grant, but because of the
factors – Convention compliance – which makes s 10(3) applicable. As
Gudanaviciene says bluntly: ‘Exceptionality is not
a test’ (para ), it is merely a descriptor. And of s 10(3)(a) the court
 … Section 10(3)(a) speaks of
the situation where a failure to make civil legal services available would be a
breach, not where there would be a real risk of a breach….
 In short,
therefore, if the Director concludes that a denial of ECF would be a breach of
an individual's Convention or EU rights, he must make an exceptional funding
determination. But as we shall see, the application of the ECtHR and CJEU
case-law is not hard-edged. It requires an assessment of the likely shape of
the proposed litigation and the individual's ability to have effective access
to justice in relation to it….
If the ‘Director’ – the
LAA decision-maker – cannot decide if there would be a breach of
Convention or EU rights s/he goes on to consider the application under s
 …. In making [a
decision under s 10(3)(b) the decision-maker] should have regard
to any risk that failure to make a determination would be a breach.
These words mean exactly what they say. The greater he assesses the risk to be,
the more likely it is that he will consider it to be appropriate to make a
determination. That is because, if the risk eventuates, there will be a breach….
In any decision-making, the LAA case-worker must ‘have
regard to guidance given by the Lord Chancellor about the carrying out of those
functions’ (LASPO, s 4(2)). The Lord Chancellor has issued guidance to LAA
decision-makers in relation to s 10, namely Exceptional Funding Guidance
Guidance). It is
the way case-worker approached that guidance which had enabled Collins J below
Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor  EWHC 1840 (Admin)) to find it
unlawful and to direct, as a result, that four legal aid applications should
have been granted, and that two should be reconsidered.
But what if the
says something different from the statute? This is where anyone – applicant,
lawyer, decision-maker – concerned with the decision made in reliance on the
Guidance to check the original statutory
power. Don’t worry about the small print, is the message. Read the big print.
Go back to the statutory source of the decision-making power.
extensively from the
paras  to ), and states the general issues on appeal (as distinct from
immigration issues with which the specific appeals were primarily concerned)
as: (1) how properly LASPO, s 10(3) should be interpreted; and (2) whether the
Guidance is compatible with European
Convention 1950 Art 6 and EU Charter of Fundamental Rights Art 47 (the
differences between Arts 6 and 47 for purposes of the case were not
distinguishable: para  and ).
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