Court of Appeal allows appeal determining that ECF scheme is lawful

The Court of Appeal has allowed the appeal from determination that Exceptional Case Funding Scheme under LASPO 2012 is unlawful.

In the Director of Legal Aid Casework v IS [2016] EWCA Civ 464, the claimant, a protected party represented by the Official Solicitor, brought judicial review proceedings challenging the validity of the Exceptional Case Funding Scheme (ECF) for the administration of legal aid pursuant to s 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. At first instance the judge allowed the application for judicial review and granted declarations that: (1) the ECF Scheme as operated was unlawful as giving rise to an unacceptable risk that an individual would not be able to obtain legal aid where failure to provide it would be a breach of that individual’s rights under the European Convention on Human Rights or under directly enforceable EU law; (2) the Civil Legal Aid (Merits Criteria) Regulations 2013 (the Merits Regulations); and (3) the Exceptional Case Funding Guidance (Non-Inquests) (the Guidance) were unlawful: [2015] EWHC Admin 1965. The Director of Legal Aid Case Work and the Lord Chancellor now appealed.

The appeal was allowed by a majority.

Laws LJ highlighted the danger of a judge crossing the line between adjudication and the determination of policy: he may (however unwittingly) be too ready to treat his individual criticisms as going to the scheme’s legality. Even so the dividing line between multiple instances of unfairness and an inherent failure in the system was in considerable measure a matter of degree, and therefore of judgment. In this instance the judge’s approach to the case did not clearly gather his strictures into a reasoned conclusion to the effect that the scheme failed to meet the test.

It was clear that there had been many difficulties, and the complexity of the ECF form had been common to many of them, however, the state of the evidence did not justify an across-the-board conclusion that the scheme was, of itself, so unfair as to lie outside the range of lawful choices open to the Lord Chancellor and the LAA in the administration of s 10 of LASPO.

The Merits Regulations offered a balanced, proportionate approach to the grant of legal aid which could not be condemned as arbitrary and unlawful. The merits criteria were carefully specified and exceptions carefully spelt out. There was an internal review procedure (reg 69 of the Legal Aid (Procedure) Regulations 2012). Furthermore, judicial review was available and effectively deployed.

In relation to the Guidance it was a legitimate purpose of LASPO that the availability of civil legal services be confined to cases judged to be of the greatest need.

Briggs LJ, dissenting, found that the defects in the procedures for applying for ECF in the system in place at the time of the hearing below were systematic and inherent, to the extent that they rendered the scheme inherently unfair. He would have dismissed the appeal. The combination of an application process which was inaccessible to most litigants in person and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, made the ECF scheme inherently defective and, therefore, unfair.

The full judgment is available to download here.