Written evidence submitted by Hodge Jones and Allen Solicitors LLP (LAI 0060)

PRACTICAL IMPLICATIONS             

Unrealistic burden on civil lawyers with no immigration law expertise to advise clients on their eligibility

As yet the Government has provided no specific guidance as to what will be acceptable evidence of satisfying the residence test. The proposal will affect all claimants, whether or not defined as having a strong connection to the UK, as all applicants for legal aid will need to show that they satisfy the test. Vulnerable people, those with chaotic lives, and homeless people may all be significantly disadvantaged by these requirements. If they cannot produce the evidence to show that they satisfy the test even if they do in fact qualify, they will be prevented from obtaining funding and there will be a corresponding adverse effect on access to justice.

Without details on the specific test to be carried out or the acceptable evidence, it is difficult for providers to make a meaningful assessment of the practicality of assessing and advising clients on their eligibility for legal aid. Clearly there is a risk that practitioners will be discouraged from taking on otherwise meritorious cases where there is some doubt over whether the residence test can be easily evidenced. Not only is there the risk that the additional time involved in assessing and advising on this issue will not be recoverable, there are also potential risks to the provider if it is considered that the test was not carried out correctly. It is unclear what standards are to be expected of civil practitioners who are not immigration specialists, would they be expected to spot forgeries or spot technical faults in immigration documents, can they continue to advise after the expiry date of a visa if an application to renew is pending. An applicant’s immigration status may change during the life of a case and the consultation makes no mention as to whether legal aid funding would cease in those circumstances or whether an application would have to be made for Exceptional Funding. It is not clear whether providers are expected to regularly reassess eligibility under the residence test.

The Government response at paragraph 128 suggests that the test creates little risk for provider, as long as legal and contractual duties are followed. However we consider there are two practical difficulties which create risk for the provider which may result in fewer practitioners taking on legal aid cases. Firstly the additional work practitioners will be required to carry out to assess eligibility will be burdensome and potentially unrecoverable from the Defendant in successful cases. The more vulnerable the client, the more burdensome it will be for the provider to collate the necessary evidence to satisfy the test. The costs of this work, which must be undertaken for all applicants for legal aid, would ultimately have to be paid by the Legal Aid Agency, as it is unlikely that Defendants will agree to pay these costs even in successful claims.

Secondly, some categories of work such as Legal Help are only assessed and paid by the Legal Aid Agency at the conclusion of the case. This type of work does not cover court proceedings so the costs do not usually exceed £2000. However, if the Legal Aid Agency found that the evidence for the residence test was insufficient at the conclusion of the case it is unlikely the provider would be paid. Because of these increased risks, it is likely that where there is any difficulty evidencing that applicants satisfy the test, practitioners will not be able to take on cases regardless of the merits, and indeed the actual eligibility of the claimant. This has clear implications for access to justice. Again, it is likely to be the more vulnerable applicants who will be adversely affected by the proposal.

Exceptional funding

We represent clients in claims against state authorities, which arise in circumstances where the client may not satisfy the proposed residence test. This includes persons in immigration detention who may have claims arising in assault, discrimination and human rights. We act for families of persons who die in immigration detention or other custody. We also act for clients in claims against the police. These services currently fall under paragraphs 21, 22, 41 and 43 of Part 1, Schedule 1 LASPO. None are included in the Government’s proposed exceptions to the residence test set out in its response to the consultation document. Therefore the residence test will apply to these cases.

Our own view is that a serious breach by a UK authority in of itself creates a strong connection with the UK. It is common sense that claims of this nature are heard in this jurisdiction, regardless of the provenance of the person affected by the breach. Indeed this view is consistent with the law on jurisdiction under Article 1 of the European Convention of Human Rights. Where an individual is subject to the authority and control of UK state agents, that person is brought within UK jurisdiction, so that a breach by a UK soldier in Iraq against an Iraqi national would nevertheless bring the Iraqi within the UK jurisdiction (Al Skeini & Ors v United Kingdom, App no. 55721/07, judgment date 7 July 2011). Individuals in detention and/or who are victims of abuses by UK state authorities are clearly subject to the authority and control of those authorities, and by analogy with the jurisdiction point we consider this creates a strong connection to the UK. To deny effective access to justice for individuals with claims of this nature would risk breaching Article 13 of the Convention, the right to an effective remedy. We consider that the reliance on exceptional funding is insufficient for claims of this importance. Exceptional funding is by its nature exceptional, discretionary and lacking in transparency and consistency. We are not in favour of the residence test at all, but at the very least we consider it is a nonsense not to include Paragraph 21 (abuse of position or powers by a public authority) and Paragraph 22 (breach of Convention rights by a public authority) in the exemptions to the residence test proposed by the Government.

In each of the above cases, the only apparent recourse for claimants who do not satisfy the residence test is to apply for Exceptional Funding. The proposal is reliant on the availability of such funding to cover the gap in access to justice that the test will create.

There are clear and concerning practical implications of this reliance on Exceptional Funding. In particular:

Administrative burden and risk of delay

At present the Legal Aid Agency has one team processing Exceptional Funding applications, based at the Ministry of Justice. If access to justice is not to be affected by the proposal, there must inevitably be a significant rise in the number of Exceptional Funding applications leading to increased administrative costs and/or real risk in delay.

Work involved in preparing application

The current requirements for an Exceptional Funding application are completion of a 14 page form with specific details of the case and submissions as to how it satisfies the criteria, completion of a second 14 page form with details of the case, the steps to be taken in proceedings, the expected costs and justification for funding, and completion of a 13 or 21 page form providing the applicants’ financial information, supported by evidence. For inquest proceedings the latter must be provided for every single immediate member of family of the deceased. Some degree of investigation of the case must be undertaken in order to assess whether the case will satisfy the criteria for Exceptional Funding and to identify evidence supporting that assessment to submit to the Legal Aid Agency. Providers will have to carry out this work at risk. If the applicants are based overseas (as may happen with the families of the deceased in immigration detention cases), the time and work involved will increase, as will the cost and consequential risk to the provider. At present in inquest proceedings if an applicant is otherwise financially eligible for legal aid, the work in applying for Exceptional Funding for advocacy can be carried out under Legal Help (which allows for advice and assistance, but not representation at court), which mitigates some of this risk. With the proposed changes, we would not be able to use the Legal Help scheme to do this work for applicants who fail the residence test. Consequently all the work must be carried out with the risk that the costs will not be recovered. We fear that inevitably the pool of practitioners able and willing to take on this level of risk will decrease, which will only adversely affect access to justice.

No provision to grant on emergency basis

There is no mechanism for granting Exceptional Funding on an emergency basis. It can be granted retrospectively, but in urgent cases this means applicants who fail the residence test will not have access to justice unless they are able to find practitioners able and willing to carry out emergency action on their case at the risk that all the work undertaken, which could include issuing urgent judicial review proceedings, urgent applications for adjournments and injunctions, may not be recoverable. The issue is not that the lawyer will not be paid, but that this consequence will inevitably mean that fewer lawyers will be able to do this work, and that means some meritorious claims will not get off the ground. This clearly affects access to justice.

Lack of transparency and consistency in funding decisions

Exceptional Funding is by its nature, exceptional. Applications will be considered on a case by case basis. Although there is a general test in Section 10 LASPO (whether the applicants’ Convention rights will be affected, or if failure to fund the case will result in such a breach). However, there is a lack of detail on the assessment which will be made in practice. For example, if the Convention right likely to be affected is a qualified right, caseworkers may well be making assessments that the interference with that right is justified. Exceptional Funding is not a transparent system and the lack of clarity is likely to lead to discrepancies in decision making and satellite litigation on Legal Aid Agency funding decisions.

Secondary Legislation

The Government proposes that applications to provide services to claimants who fail the residence test by way of Exceptional Funding can be dealt with through the existing power at Section 10 of the Legal Aid Sentencing and Punishment of Offenders Act. The response to the consultation suggests that an amendment to Schedule 1 will be sufficient to extend Section 10 to cover excluded persons, as opposed to excluded cases. No detail is provided on the proposed amendment.

The wording of Section 10 (1) is:

“Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.”

Subsection 2 provides that Exceptional Funding can be granted where the Director makes a determination that failure to provide funding would be a breach of the individual’s Convention or EU rights or that there is a risk of such a breach.

Subsection 4 provides for funding for advocacy in inquest proceedings to be granted where the Director has made a wider public interest determination in relation to the applicant and has determined that the applicant qualifies.

The effect of subsection one is that all of the services listed in Part 1 of Schedule 1, which include claims for abuses by public authorities, claims for breaches of Convention Rights, discrimination claims and assistance other than advocacy in inquest proceedings, do not fall within Exceptional Funding, because these services are already in scope. Presumably the Government’s proposed amendment to Schedule 1 will aim to make some sort of provision for all the services in Part 1 to be read as if they are excluded services when offered to individuals who fail the residence test.

It is clear that the original wording of the section quite clearly applied to categories of cases, and not categories of person.  Any amendment to Schedule 1 will necessarily be somewhat clumsy to overcome the ordinary meaning of Section 10. The very awkwardness of this perhaps suggests that the Government is attempting to stretch the exercise of these powers far beyond what Parliament construed to be intended when passing the primary legislation. There is at least a very real risk that if the amendment is not carefully drafted and subjected to careful scrutiny, there will be a lack of clarity as to exactly who or what may be covered by Exceptional Funding.

CASE EXAMPLES

Cases 1 and 2 are inquests arising from deaths in immigration detention. The residence test will apply to the deceased’s family members who apply for advice and representation in the inquest proceedings.

Example 1

The case of B concerned the death of a 47 year old male immigration detainee at Colnbrook Immigration Removal Centre on 2nd July 2011 from coronary heart disease. He was found by his cellmate early on 2nd July on the floor, sweating, complaining of chest pains and grey in colour. His cellmate raised the alarm but the healthcare staff who attended didn’t offer an ECG or call an ambulance. Initially he was given treatment for heartburn. The deceased collapsed again but staff did not administer life saving first aid and did not have the appropriate equipment. An ambulance was called but the deceased was pronounced dead at hospital. A clinical review found that opportunities were missed in this case to potentially prevent this death. Criticisms were also made in respect of the defective equipment that was available. At the inquest, the jury concluded that neglect contributed to the death of the deceased, who had a pre-existing heart condition. It was held that there was a total and complete failure of care in the management of the deceased’s health due to a misdiagnosis of the symptoms of cardiac arrest. These findings should ensure that healthcare systems and responses are improved to prevent other unnecessary fatalities.

Example 2

The case of D concerned the death of a 35 year old male American citizen in an immigration removal centre on 31st July 2011. The deceased was refused entry to the UK as a ‘doubtful visitor’ and taken into immigration detention. He had a history of high blood pressure and mental health problems. He received no treatment for his blood pressure and his mental health deteriorated during his detention. On 16th July he complained of having a heart attack and the locum GP found his blood pressure was dangerously high, referring him to hospital. After initially accepting medication for his blood pressure, the deceased then refused all other treatment and discharged himself, against medical advice. It is not clear whether he was mentally well enough to make this decision, as he had not taken his medication since he arrived in the UK. He returned to the immigration detention centre from the hospital, but the discharge information was not relayed and staff at the detention centre failed to contact the hospital to enquire about any follow up care required. No blood pressure medication was prescribed. In addition, his mental health declined causing behavioural problems. Now very unwell, the deceased was transferred to another immigration detention centre without his medical records and received no treatment on arrival. He died on 31st July from a ruptured aorta.

The inquest and civil claim brought by the mother of the deceased will investigate the extent to which the privately run immigration removal centre breached the deceased’s right to life and whether it followed the correct procedures in respect to his mental health. The case will investigate whether lessons should have been learned from other deaths. 

Example 3 concerns abuse of powers and breach of Convention Rights. The residence test will apply to individuals with claims such as the one described in this example..

Example 3

S unsuccessfully sought asylum in the UK after suffering torture in her country of origin. Having exhausted all her appeal rights, she was detained in immigration detention pending deportation.  She is HIV positive and was suffering from severe post traumatic stress disorder. She made a series of suicide attempts and refused food and stopped taking HIV medication. She was so weak, and also suffering a leg injury, that she could only walk with the aid of a stick.  She was detained for a prolonged period contrary to Home Office guidelines given she was not fit to be detained on psychiatric or medical grounds. Despite only being able to walk with a stick and never having been violent, Serco staff insisted on handcuffing her to go to outpatient appointments meaning she could not use her stick and ultimately could not attend.  This had serious implications for her HIV and mental health. While in immigration detention she was seriously assaulted by multiple Serco officers, with hands put over her nose and mouth so she could not breathe.  She suffered cuts and bruising and a serious exacerbation of her psychiatric injury. Eventually she was released from immigration detention after it was acknowledged that she was unfit to be detained. She claimed damages for false imprisonment (wrongful detention contrary to Home Office guidelines) and assault against Serco officers, recovering 5 figure sums from both the Home Office and Serco.  She was recently granted indefinite leave to remain and now lawfully resides in the UK.  Under the new proposals she would have been unable to challenge her detention and, based on psychiatric assessment, would most likely have succeeded in her aim to commit suicide in immigration detention. She would have been unable to challenge the serious assault by Serco officers.  Ironically she would now be eligible on residence grounds, but her claims would be long out of time.

SECTION 2

The proposed restriction on the scope of legal aid available to prisoners

PRACTICAL IMPLICATIONS

Resources for complaints and accessibility

As our case example below shows, the complaints system can seriously fail prisoners even when raising very genuine concerns and alerting authorities to a real risk of harm.

The proposal will only lead to an increase in number of complaints and increased risk that problems will not be dealt with in a timely manner. The government proposes that ensuring prison compliance with prison services standards on complaints should ensure few matters need to be referred to the Prison and Probation Ombudsman, minimising the resource implications for the latter. However there is no mention of additional resources being assigned to prisons to allow them to process complaints more effectively.

In our experience the standards of decision making in prison complaints is very poor. There is often a significant delay before the prisoner receives a response, and frequently he or she is not provided with reasoning for the decision made. This makes it difficult for the prisoner to make any meaningful argument to appeal the decision. This, taken with the fact that even if referred to the PPO the decisions of the latter are not binding, is likely to discourage using the complaints system to address their issues, which effectively deceases access to justice.

Accessibility

The government considers that the fact prisoners are told on their arrival in prison where the complaint forms are, and that they must have information available in a language they understand is adequate to ensure all prisoners have equal access to the complaints system. We consider the most vulnerable prisoners would require additional assistance to help them with the complaints process and to make representations on their behalf. It is clear this proposal is most likely to adversely affect prisoners with mental ill health or a learning disability, and that their access to justice will be curtailed as a result.

Judicial Review proposed as a failsafe

In its response to the consultation, the government refers to judicial review as an available remedy for any shortfall in access to justice at paragraphs 14, 21, 24, 28 and 34, including where prisoners are unhappy with the outcome of the complaints process.

It is likely that the proposal could lead to a rise in number of prisoners wishing to bring judicial review proceedings. However, due to the other proposals on judicial review discussed further below, there may be limited providers able to take on these cases, the net result being a decrease in access to justice.

Omissions in scope and effect on provision of services

The stated policy aim of the proposal is to limit Legal Aid funding to cases where the prisoner’s liberty is affected. The only cases left in scope are those before the Parole Board where the latter has a power of direct release, and sentence calculation matters.

It is concerning there is no provision for representation in adjudication proceedings before the Independent Adjudicator, who has the power to impose additional days on to a prisoner’s sentence. Clearly this has implications for the individual’s liberty, so is not outwith the policy aim.

The concern must be that with such limited areas of work left in scope, there will be no incentive for practitioners to bid for criminal aid prison law contracts. With fewer providers, the opportunities for prisoners to be represented (in particular by specialist practitioners) even where legal aid is technically available will inevitably decrease.

CASE EXAMPLE

Example 4

E was imprisoned in 2008.  He suffered homophobic abuse at the hands of prison officers, and was abused and threatened by fellow inmates.  His complaints and requests to transfer prisons fell on deaf ears and he was not protected from the threats and abuse.  Nothing happened for some months, during which time he was attacked with a sharpened biro around the eyes in a homophobic assault by another inmate.  He suffered serious cuts around his eyes and head and post traumatic stress disorder, and still suffers symptoms some 3 years on. He brought a claim against the Ministry of Justice for discrimination by prison officers and failing to protect him from a homophobic assault which was a breach of his human rights. 

SECTION 3

The proposal that providers of legal services in applications for judicial review against public bodies should only be paid for work done on the case if the Court grants permission for the application to proceed

PRACTICAL IMPLICATIONS             

Judicial Review cases differ from normal civil claims in that most of the work is done before the permission stage

Most of the work for an application judicial review is undertaken before the permission stage. In order to persuade a Judge to grant permission, the whole case needs to be prepared to demonstrate that it has merit. An application for judicial review usually entails instructing Counsel, drafting grounds for application, researching relevant legal authorities, producing a suggested reading list for the court, drafting witness statements for the solicitor with conduct of the case and creating bundles to accompany the application. It is an extremely lengthy process and even a straightforward application takes approximately 20-50 hours to prepare.

Permission may not be considered at an early stage, meaning that significant costs will have been incurred by the time the issue comes to be considered.  For example in many highly complex cases, a decision is made by the Court to ‘roll up’ the issues, dealing with permission at the point of the final hearing.  By that point not only will all the work have been done preparing detailed ground and voluminous bundles to issue the claim, but all preparation will also have been done by solicitor and Counsel, with further bundles prepared, for the final hearing. This is likely to total 100-200 hours work in a relatively complex case.  No legal team could take the risk of not getting paid for this.

Proper preparation of Judicial Review cases is hugely important. Our common law system evolves from Judicial Review cases and it is vital that these kinds of cases are prepared thoroughly and with due consideration to all the issues and the implications of bringing the claim. This proposal is a disincentive for proper preparation of the case, which is not in the interests of justice. The risks for providers are likely to result in a reduction of practitioners willing to pursue cases which may in fact be meritorious. This affects access to justice, but also has an adverse impact on the proper scrutiny of decision making.

It is very difficult to accurately estimate the risk involved in bring a Judicial Review

It is difficult for a Claimant solicitor fully to assess the merits of a judicial review at the outset. This is because often the Defendant will not disclose voluminous and highly relevant documentation at the pre action stage, but only when acknowledging the claim or even later.  A Claimant solicitor must make a decision, in a very limited timeframe, on the information that does become available.  It is not possible to make a full risk assessment of information that may later emerge.

In light of this there is already an inequality of arms between claimants and defendants. Moreover, legally aided claimants must have already satisfied a means test to be granted funding, whereas there is no check on Defendants continuing to defend claims against advice on merits (as indicated in the letter to the Attorney General signed by a large number of Treasury Counsel panel members). Claimant solicitors must make the best assessment of merits that they can in a short time period often based on limited information. The government proposes that the merits test already in place is insufficient, and providers must shoulder some financial risk to discourage claims from being brought.  As set out above, the financial risk is not inconsiderable because of the amount of work that must be done at the outset of the claim. The fact that legal aid has been granted on the basis of passing the merits test would be no guarantee of payment. Providers will be discouraged from issuing judicial review claims even though there are a number of reasons why permission may not be granted and the claim may well prove meritorious when full information is disclosed.

It could increase costs elsewhere in the budget

The government proposal for a discretionary payment may create a perverse incentive to issue judicial review proceedings to ensure that the case could qualify for this payment in the event the claim ends before permission stage.

It is not usual to get costs orders in judicial review claims at the moment. Often if claims settle after issue but before permission the usual agreement is no order as to costs. This in effect saves some legal costs for defendant local authorities. However with no certainty that the discretionary legal aid payment will be made, there will be an incentive for providers to seek inter partes costs, which could also lead to satellite litigation on costs.

Many judicial review claims can settle at the pre-action stage, without the need to issue proceedings. However, there is less incentive for the Defendant to come to an agreement with the knowledge that the risks to providers of issuing proceedings may mean that the matter will not be pursued. 

The proposal is likely also to lead to a rise in the number of litigants in person.  This will increase the amount of time the Court has to spend resolving the issues in this case, to ensure a fair hearing for unrepresented claimants, without the benefit of bundles of relevant authorities, evidence and legal argument.

CASE EXAMPLES

The Judicial review proposals appear to be premised on the assumption that all cases where permission is refused are unmeritorious.  Often however cutting edge cases involving issues of fundamental importance are brought and permission initially refused, only later to be granted in other similar proceedings, at the point at which the law has sufficiently developed, as in case example 5 below.

Example 5

JT was wrongly convicted of serious sexual offences and subsequently had his convictions quashed by the court of appeal out of time, after it emerged that the alleged victim had admitted to an acquaintance of hers that she had fabricated the allegations. He sought compensation for a miscarriage of justice, having wrongly served time in custody and having had his reputation seriously damaged by what he had been through.  The Secretary of State refused his application for compensation on the basis that he had not satisfied the statutory test for having suffered a miscarriage of justice, essentially saying that he had not proved to the necessary standard that he had not committed the offence.  He sought permission to judicially review the Secretary of State for Justice’s decision in October 2009, but was refused permission on the papers and at an oral hearing. Numerous other applicants were refused compensation for similar reasons to JT at around the same time and in following years. Others could not even get legal aid to apply for permission to bring judicial review proceedings, based on the state of the case law.  It was only after the Supreme Court handed down the judgment in the case of Adams in May 2011 holding that the Secretary of State for Justice’s application of the statutory miscarriage of justice test had hitherto been too narrow, that JT and others were able to reapply for permission to judicially review the original refusal.  Based on an identical set of facts to that initially presented to the court (but case law having developed in the intervening years), permission was granted to JT to pursue his judicial review in October 2012.

HJA frequently undertakes cases where an application for permission is made but the claim is then settled before the court had to decide the application. This is usually because the threat of judicial review has caused the relevant decision making authority to change its decision and grant the client the desired outcome. There are numerous reasons for a case being withdrawn before the decision to grant permission is made or indeed for refusal of permission. A common reason for refusing permission is that the case has become academic. This does not remotely imply that the case does not have merit or the application should not have been made, as in case example 6 below.

Example 6

C, a man of good character, was alleged to have committed an offence in the Czech Republic and he was led to believe that there was a European Arrest Warrant in force. An arrest warrant was issued in the UK and he was arrested and imprisoned pending his extradition and the hearing of his appeal (he had contested the basis of the extradition).  At the hearing of his appeal, after some months, it emerged that there was no valid European Arrest Warrant in place and that the Serious Organised Crime Agency, responsible for issuing the UK Arrest warrant, had known about this but not informed him or the court. Had they done so he would have had to be released immediately.  He brought judicial review proceedings against the Serious Organised Crime Agency claiming that he had been wrongly detained and that SOCA had acted with bad faith by keeping the information from him.  The claim was initially contested and voluminous disclosure considered.  During consideration of the voluminous and disclosure, it emerged that SOCA had in fact known that he was unlawfully detained for not 1 but 3 months.  Prior to permission being considered on the papers, SOCA conceded and paid C a five figure sum in damages.  Solicitors and counsel had done significant amounts of work, seeking documents from SOCA and the CPS, prison papers, drafting pre action correspondence, preparing the claim form and drafting detailed grounds, considering the response and voluminous documents by way of disclosure and liaising with the Defendant over settlement.  At the point of settlement, solicitors had done 50 hours’ work and Counsel had done 20 hours’ work.

SECTION 4

The proposal that legal aid should be removed for all cases assessed as having “borderline” prospects of success.

Cases which concern novel areas of law which test and push the boundaries of current law tend to fall into the category of borderline merits cases. This proposal is likely to significantly impact on more complex and cutting edge cases. There is no proposed exception to fund ‘borderline’ cases which are of wide public interest.

At paragraph 175 of its consultation response the Government states that it does not believe the proposal will affect cases which have the potential to develop case law as in these cases ‘the arguments for it are likely to be strong.’

This statement fundamentally misunderstands the definition of borderline. The definition of borderline is set out at Paragraph 3.84(iv) of the original consultation document:

‘the case is not unclear but it is not possible by reason of disputed law, fact or expert evidence, to (a) decide that the chances of achieving a successful outcome are 50% or more; or (b) classify the prospects as poor’

Where such criteria apply, the only body which can properly clarify or resolve the legal, factual or expert evidential dispute, is the Court. In novel, test or complex cases it is not possible to accurately state that the prospects of success are strong, precisely because there is no legal precedent. Practitioners will clearly consider the arguments for the law to be thus developed to be strong, otherwise the case would not be pursued, but that is not the same as strong prospects of success. These are defined as ‘the likelihood that the applicant will obtain a successful outcome at trial or final hearing’ and are assessed with reference to clear legal precedent, and not untested legal arguments, however strong or persuasive.

It is therefore not clear that such cases will be publically funded, because a practitioner would properly assess them as borderline. Legal aid in such cases is extremely important, precisely because there is a wide public interest in the clarification of the law. The very few private individuals who would be in a position to take a test case to the Supreme Court tend not to be victims of abuses of state power. 

The current test for funding of borderline cases requires practitioners to demonstrate the wider public interest in the resolution of the dispute. This introduces checks and balances to ensure it is only the most important, legally complex or test cases with far reaching implications for the public which will attract funding. Therefore the proposed change is specifically targeting claims of this nature.

The proposal is likely to have a disproportionate impact on judicial review proceedings, where there is often a dispute between the parties as to the law which would require resolution by the court. This does not concern the purportedly ‘unmeritorious’ judicial review claims which the consultation document is otherwise concerned with. Such judicial review claims if properly brought would have had to satisfy the current stringent test for borderline funding of demonstrating a wide public interest in the issues at stake.

The effect is that the organs of the state will always be in a position to challenge decisions they disagree with or seek to reverse legal developments with which they are uncomfortable, but claimants will not have the same equality of arms, or access to justice.

CASE EXAMPLES

Example 7

HJA acted for a client J, who spent two months in prison after being charged with possessing a fraudulent passport.  Our client’s passport was in fact genuine, but there was expert evidence to suggest that it had been manipulated.  This meant the claim was not straightforward. We relied on Article 5 of the European Convention and the obligation to speedily review detention.  The Defendant argued the claim had no basis in law and applied to strike out the Claim. However this application was not successful and thereafter the claim settled.  This is a case that was far from straightforward and was border line on merits, but was ultimately successful. It concerned the detention for over two months of an innocent woman and the public would expect our justice system to deliver compensation in these circumstances.

Disputed evidence, strike out application

Example 8

The Snatch Land Rover Case was an extremely challenging case against the MoD relating to the use of poorly armoured Snatch Land Rover vehicles in the Iraq conflict.  We represent various parents / family members of those killed.

This has become the test case on the issue of combat immunity (the extent that the MoD has a duty of care to soldiers on active service) and the application of the Human Rights Act – including arguments on whether the courts should interfere in matters which are within the political and military sphere).

The HRA issues relate to allegations by all the Snatch claimants that the MoD breached the ‘right to life’ of their deceased loved ones under article 2 of the European Convention on Human Rights. They alleged that the MoD owed the soldiers a duty to take “reasonable steps” to protect them from “real and immediate” risks to their lives, of which the MoD was aware.  It also owed the soldiers a duty to put in place adequate systems to protect them. 

The HRA part of the claim was unsuccessful in the High Court and Court of Appeal. However the importance of the issue and the uncertainty in the law was recognised by the Court of Appeal in allowing a further appeal to the Supreme Court. With two decisions against the Claimants on the HRA point, the Legal Services Commission judged the merits borderline but continued to fund the case due to the wider public interest.

One of the Claimants had no access to Legal Aid and had been represented under a Conditional Fee Agreement with the benefit of After The Event insurance. However, after the Court of Appeal judgment, the insurer deemed the risks too great. Issues of public interest and clarification of the law are of less importance to insurers. If it had not been for the continued provision of Legal Aid funding for this case it would not have been possible to pursue the appeal to the Supreme Court, with the result that the military would continue to operate under the incorrect interpretation of the law.

27 September 2013