R (on the application of Faulkner) v Director of Legal Aid Casework  EWHC 717 (Admin)
The waiver of a statutory charge under Regulation 47 of the Community Legal Services (Financial) Regulations 2000 is required to take place at the start of or throughout a case, not at its conclusion. There is discretion to waive a statutory charge where the proceedings are in the public interest and it is cost-effective to support particular claimants.
8 March 2016
1. The Claimant, a prisoner, sought judicial review of the Legal Aid Agency's decision not to waive a statutory charge imposed under section 10(7) of the Access to Justice Act 1999.
2. The Claimant was awarded £10,000 in damages by the Court of Appeal as a result of being unlawfully detained contrary to Article 5(4) of the ECHR. The Parole Board appealed that decision.
3. The Supreme Court subsequently allowed the appeal and lowered the award to £6,500. A costs dispute followed, where the Claimant argued that a costs order should be made in his favour as failure to do so or making no order for costs would effectively write off his award. The Supreme Court subsequently gave a costs order in favour of the Parole Board.
4. The Claimant, having received legal aid for the Supreme Court appeal, sought, from the Agency, a waiver of the statutory charge so that he would be able to keep his award. The Agency refused to waive the charge under regulation 47 of the Community Legal Services (Financial) Regulations 2000.
5. The Claimant argued that the Agency's decision had been based on a defective interpretation of regulation 47, as it was based on the assumption that the waiver ought to come at the start of a case instead of the conclusion.
6. The Claimant further argued that the refusal violated the Human Rights Act 1998, as it would leave him without effective redress for violation Article 5.
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7. The claim was dismissed.
8. Statutory charges have been an ever-present feature of the legal aid scheme since its inception.
9. A decision vis-à-vis whether waiving the statutory fee was in the public interest and whether cases were to be funded by a different method were to be made at either the start of or during a case. This was the only possible interpretation of regulation 47(2), which was made clear by Regulation 9 of the Civil Legal Aid (Costs) Regulations 2013.
10. It was further held, first, that to conclude that the construction of regulation 47 favoured by the Court breached the Claimant's human rights was divergent from the necessary inference of Supreme Court's order. Moreover, if that interpretation violated the Claimant’s human rights and if his award was subject to a statutory charge, regulation 44 would list it as an explicit exemption, but it did not do so. Second, ECHR jurisprudence has never criticised the costs regime in place in the UK. Third, there is a principle of costs that an award should never be for the full amount incurred. Fourth, Part 36 offers had not been criticised by Strasbourg, neither had issue-based costs orders.
11. Damages granted under Article 5(5) ECHR were significant, though fiscally modest. Damages under the Convention are not of a distinct nature from other damages. They ought not to be immunized or attract any special status in a way that other awards would not.