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Family Law

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15 JUN 2015

Lord Chancellor’s Guidance on Exceptional Case Funding

David Burrows

Solicitor Advocate

@dbfamilylaw

Lord Chancellor’s Guidance on Exceptional Case Funding
Guidance after Gudanaviciene

In http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial) Family Law News considered R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The Court of Appeal found the Lord Chancellor’s guidance for grant of exceptional case legal aid funding (ECF) was partially not compatible with European Convention 1950 on human rights. The Guidance ‘impermissibly sends a clear signal to caseworkers and the Director that the refusal of legal aid will amount to a breach only in rare and extreme cases’ (para [181]). The threshold for grant was set too high.

On 9 June 2015 the Lord Chancellor published Exceptional Funding Guidance (Non-Inquests)[1] (the Guidance) revised in the light of Gudanaviciene. This note considers those revisions, and whether – still – the ECF scheme is not Conventions compliant.

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) s 10(3) explains when ECF should be granted. It is ‘exceptional’, not because of some rarity of grant, but because of the factors – namely Convention compliance – which makes s 10(3) applicable. ‘Exceptionality is not a test’ (para [29]), said the court, but merely a descriptor. 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…’. (at [31]). If the LAA case worker cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b): is there ‘any risk that failure to make a determination would be a breach. These words mean exactly what they say’ (at [32])?

‘Obvious unfairness’

In Gudanaviciene the court asked whether lack of representation created ‘obvious unfairness’ ([42]). In a passage, which should surely have found its way into the new Guidance, the ‘obvious unfairness’ case-law (at [46]) was summarised by the court:
  1. The Convention guarantees rights of access to the courts that are practical and effective, not theoretical and illusory (Airey v Ireland (1979) 2 EHHR 533, at para 24; Steel and Morris (2005) 41 EHRR 22, at para 59).
  2. Is the applicant's appearance before the court without a lawyer likely to be effective: ie whether s/he could satisfactorily present the case (Airey (above) at para 24; McVicar v UK (2002) 35 EHRR 22, at para 48; and Steel and Morris (above) at para 59)?
  3. It is relevant whether the proceedings taken as a whole were fair (McVicar (above) at para 50, P,C and S v UK (2002) at para 91).
  4. The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair (P,C and S (above) at para 91).
  5. Equality of arms must be guaranteed so that each side is afforded a reasonable opportunity to present his/her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris (2005) at para 62).
Case presentation by a party: ‘effectively and without obvious unfairness’

The ‘critical question’ remains: is ‘an unrepresented litigant able to present his case effectively and without obvious unfairness’ (para [56])? The Guidance has been only slightly rewritten to reflect the findings in Gudanaviciene. For example, the old guidance (para 12) stated that Art 6(1) guaranteed the right to a fair hearing, but that grant of ECF should only be made ‘in certain very limited circumstances’. The same passage in the new Guidance reads (now para 13):

Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person’s civil rights and obligations. In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Art 6(1) does not require that funding be granted in “most or even many cases” [Gudanaviciene at para [56] (see below)] ... Whether the Convention requires funding in any given case depends on a holistic assessment in each case.

Further para 18 (original guidance, criticised by Gudanaviciene), has been redrafted as a rubric between paras 19 and 20 as follows:

The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness. (Emphasis in original)
The position on grant of ECF to avoid ‘obvious unfairness’ is intended to be reflected in the new para 20 which states:

The following factors should be taken into account. No one of these factors is necessarily determinative and each case needs to be assessed on its particular facts and in the light of representations made by applicants. However, the factors must be carefully weighed – for example, the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Art 6(1) will require the provision of legal services [Gudanaviciene para [56] is cited here].

What the Court of Appeal actually said is:

'[56] … the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance [now paras 20 to 26]. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases.'
In Muscat v Malta (2012) (App No 24197/10) the European Court made a similar point:

'[46] … In discharging its obligation to provide parties… with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6.' (Emphasis added)
The reference to ‘all the circumstances’ and other references in Gudanaviciene to European Court jurisprudence (see eg para [46] summarised above) is omitted from the Guidance in paras 19/20, and elsewhere. Does the Guidance comply with what the Court of Appeal said made it non-compliant with European Convention 1950? Can it be said that the approach of the new Guidance consistent with the duties of the Lord Chancellor under the European Convention 1950 as perceived by the recent Court of Appeal decisions in Gudanaviciene and the earlier JG decision?

[1] The full title necessary, to distinguish the two forms of civil legal aid: for inquests and for other civil proceedings.
 
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Civil legal services: duties of the Lord Chancellor

The duties of the Lord Chancellor to provide legal aid ‘civil legal services’ are set out in LASPO s 1(1) and (2):
  1. The Lord Chancellor must secure that legal aid is made available in accordance with this Part.
  2. In this Part 'legal aid' means—
(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),…

Such general provision as subsists for civil legal aid is provided for at s 9 (and in extensive schedules to LASPO), and at s 10 for special legal aid (ie ECF determinations) where European Convention 1950 may be breached, or thought to be at risk of being breached.

In Gudanaviciene the Court of Appeal drew attention to the need for LAA case-workers fully to consider European Court jurisprudence (and the court provided a summary of this at paras [35] to [40]). The duties of a state (ie the Lord Chancellor) to which the Court of Appeal drew attention in Gudanaviciene and JG, in the context of Art 6(1), are:
  • A consideration of ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (Gudanaviciene at [56]).
  • There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings (Steel and Morris v UK(2005) 41 EHRR 22 at [62]; JG at [97]). That said the Convention was ‘intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’ (Airey v Ireland (1979) 2 EHHR 533 at [24]; Muscat v Malta (2012) Application no. 24197/10 at [45] quoted in JG).
  • ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (European Court in Muscat at [46])).
  • Consideration of these principles requires a consideration of all the circumstances of the case, of the underlying law in the case and of the relevant European Court jurisprudence (Gudanaviciene especially at [56]).
Duties in 2015 Guidance

The Guidance translates the Gudanaviciene requirements (with the emboldened rubric above), to give two examples, as follows:

'[6] In considering whether it is necessary to make civil legal services available, caseworkers should ask themselves whether a failure to do so would be a breach of Convention rights or enforceable EU rights by reference to the principles identified in this Guidance and in any relevant case law (emphasis supplied in the text) [citation of Gudanaviciene at [31] here].'

'[13] … In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in “most or even many cases” [citation of Gudanaviciene at [56]], but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed. Whether the Convention requires funding in any given case depends on a holistic assessment in each case.'
The threshold for consideration of grant (assuming an applicant is financially eligible) is ‘that it is necessary to make [civil legal aid] available to’ the applicant, because failure to do so would be a breach of his/her Convention rights; or the case worker fears there might be such a breach (LASPO s 10(3)). Do the above paragraphs of the Guidance translate the s 10(3) necessity into a ‘diligent’ approach to grant of legal aid (see Steel & Morris and Muscat (above))? Is the new Guidance by which case-workers assess ECF applications compliant with HRA 1998?

Human Rights Act 1998

Human Rights Act 1998 s 6(1) provides that: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

European Convention 1950 Art 6(1), so far as relevant, provides:

Right to a fair trial
(1) In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
In Airey v Ireland (1979) 2 EHHR 533 the European Court recognised that where the nature of the proceedings demanded it, a denial of legal aid might, in itself, be a denial of a fair trial contrary to Art 6(1) (Airey and the following case law is considered in Gudanaviciene at [35] to [40]). The complexity of law or procedure may not guarantee that a fair trial will be denied, but it is a factor legal aid authorities must have in mind, as explained by the European Court in Steel and Morris v UK(2005) 41 EHRR 22:

'[61] The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.'
However once a state has determined that a person’s means justify legal aid, that their civil rights are in issue and that their right to a trial risks real and obvious unfairness by a lack of legal advice and representation then, said the European Court in Muscat v Malta (above): ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (at [46])).

Is there a point at which the s 10(3) necessity threshold is achieved; and that from that threshold point – just as a doctor confronted by an injured patient must seek to help him or her – the LAA must switch to a supportive role? From then they must comply with their duty to provide help for the litigant in question within statutory limits. If this is so, how is this supportive role to be defined and to be translated into practice? And finally does the Guidance as now drafted achieve this?

Services to be provided: the s 10(3) necessity threshold

A starting point for grant of funding is at para 36 of the Guidance under the heading ‘Extent of services to be provided’:

'Where caseworkers conclude that legal aid is required to be provided under section 10, this should be limited to the minimum services required to meet the obligation under ECHR or EU law. For example, it could be through providing assistance in the form of specific levels of service, or through limitations placed on funding certificates.'
Under the capability of the applicant to present their case effectively paras 23 and 24 state:

'Caseworkers should consider whether the applicant would be incapable of presenting their case without the assistance of a lawyer. When considering this factor, caseworkers will need to bear in mind their assessment of case complexity, as this may affect the weight that needs to be given to some of the matters listed below.'
These two paragraphs (amongst a number) do not paint the LAA as a supportive department over-imbued with ‘diligence…to secure’ that services are provided. Para 36 does not present them in a forgiving light (bad losers, perhaps?) once they have accepted that the necessity threshold has been achieved.

‘Without obvious unfairness’: assessment factors

Whether the applicant ‘would be incapable of presenting their case without’ legal assistance presents only a partial view of Gudanaviciene and is unlikely to represent the law. And yet it is surely the central feature of a s 10(3) assessment? It calls for a pro-active approach by case-workers (see Kerr below), not the negative assessment which the Guidance demands. This would include a purposive to the following assessment factors:
  1. Given the facts of the case and the issues at large what is the law which may reasonably be said to be involved in dealing with the case?
  2. What is the procedure by which the case is to be dealt with and are there any particular procedural issues which may arise which an unrepresented litigant might be expected not to anticipate or to deal with?
  3. Can an unrepresented litigant be expected, without obvious unfairness, to deal with these features of law and procedure, and thereby secure a fair trial?
  4. If not what level of assistance should the LAA provide to applicants (see Kerr below)?
If the LAA can show they have assessed and fully considered each of these assessment factors in an individual case and, thus, that the s 10(3) threshold has been reached, then the LAA’s role changes says the European Court. The Agency ‘must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (Muscat (above) at para [46]).

Level of service to be expected by ECF applicants

Legal aid is intended to be a co-operative venture between applicant, lawyer and the LAA – the ‘stakeholders’ as they used to be called. The scheme under Legal Aid Act 1949 was part of the Beveridgeian welfare state introduced by the 1945 Labour government. Legal aid is part of a citizen’s right: alongside health, education and the variety of other services developed in 1945-50.

In Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, [2004] 1 WLR 1372 (a case concerning a claim for benefits for burial of a dead claimant) Lady Hale said of the welfare benefits system:

'[62] What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.'
There is no reason why the scheme for ECF grant should be any different. Yet, on present drafting of the Guidance, the ECF scheme seems still not HRA-compliant.

By contrast, if the Lord Chancellor’s case-workers can show that the LAA has complied with the list of assessment factors set out above, in a positive way and in each individual case, he can probably show he has complied with his duties under LASPO ss 1 and 10 and HRA 1998, s 6(1). If he cannot show this – and the Guidance is not compelling evidence of ‘diligence’ in securing legal aid provision – then perhaps the Lord Chancellor’s operation of the legal aid scheme is not Convention compliant.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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