Last Updated: Friday, 24 November 2017, 08:59 GMT

I.S. (a protected party by his litigation friend the Official Solicitor) v The Director of Legal Casework & the Lord Chancellor

Publisher United Kingdom: Court of Appeal (England and Wales)
Publication Date 20 May 2016
Citation / Document Symbol [2016] EWCA Civ 464
Cite as I.S. (a protected party by his litigation friend the Official Solicitor) v The Director of Legal Casework & the Lord Chancellor, [2016] EWCA Civ 464, United Kingdom: Court of Appeal (England and Wales), 20 May 2016, available at: http://www.refworld.org/cases,GBR_CA_CIV,58a70abf4.html [accessed 24 November 2017]
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Neutral Citation Number: [2016] EWCA Civ 464
Case No: C1/2015/2576

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT – CO/17381/2013
MR JUSTICE COLLINS

Royal Courts of Justice
Strand, London, WC2A 2LL
20/05/2016

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE BRIGGS
and
LORD JUSTICE BURNETT

____________________

Between:

(1) The Director of Legal Aid Casework
(2) The Lord Chancellor
Appellants
and

IS (a protected party, by his litigation friend the Official Solicitor)
Respondent

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(Transcript of the Handed Down Judgment of
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____________________

Mr M Chamberlain QC, Ms C McGahey QC and Mr M Birdling (instructed by The Treasury Solicitor) for the The Appellants
Mr R Hermer QC and Mr C Buttler (instructed by The Public Law Project) for the The Respondent
Hearing dates: 21 & 22 March 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LAWS LJ:

    INTRODUCTION

  1. This is an appeal by the Director of Legal Aid Casework and the Lord Chancellor, with permission granted by the judge below, against the decision of Collins J given in the Administrative Court on 15 July 2015 ([2015] EWHC Admin 1965). The case concerns the legality of the Exceptional Case Funding (ECF) scheme for the administration of legal aid pursuant to s.10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and related issues. The claimant is a protected party acting by the Official Solicitor. Though he is the respondent to the appeal, it will make for clarity if I refer to him as the claimant. Collins J allowed his application for judicial review and granted declarations that (1) the ECF Scheme as operated is unlawful as giving rise "to an unacceptable risk that an individual will 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 of Human Rights (to the extent applied by the Human Rights Act 1998) 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) are unlawful in the respects and to the extent set out in the judgment. The appellants now appeal against these declarations.
  2. THE LEGISLATION

    LASPO

  3. As Collins J said (paragraph 24), "LASPO was enacted in order to limit the grant of legal aid with a view to making savings in the cost to public funds". The categories of work for which in the ordinary way civil legal aid was to be available were significantly restricted. The basic provision is given by s.9(1):
  4. "Civil legal services are to be available to an individual under this Part if –
    (a) they are civil legal services described in Part 1 of Schedule 1, and
    (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
  5. "The Director" (the first appellant) is the director of the Legal Aid Agency (the LAA). The Director is designated by the Lord Chancellor pursuant to s.4(1). S.4(3) – (5) provide:
  6. "(3) The Director must—
    (a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and
    (b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions.
    (4) But the Lord Chancellor—
    (a) must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and
    (b) must ensure that the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case.
    (5) The Lord Chancellor must publish any directions and guidance given under this section."
  7. Part 1 of Schedule 1, referred to in s.9(1)(a), may be varied by the Lord Chancellor under s.9(2). It describes those categories of case for which civil legal aid may ordinarily be provided. Such services are referred to, in the patois of this area of the law, as being "in scope". Civil legal aid for other services ("out of scope") can only be granted through the ECF mechanism given by s.10, which is the genesis of the dispute in this case. S.10 provides so far as relevant:
  8. "(1) 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)… is satisfied.
    (2) This subsection is satisfied when the Director -
    (a) has made an exceptional case determination in relation to the individual and the services, and
    (b) has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn either determination).
    (3) For the purposes of subsection (2), an exceptional case determination is a determination –
    (a) that it is necessary to make the services 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 particular circumstances of the case, having regard to any risk that failure to do so would be such a breach".
  9. As Mr Chamberlain QC for the appellants submitted, ss.9(1) and 10(2) are parallel provisions, respectively setting out the core mechanism for the grant of civil legal aid in scope and out of scope respectively. S.11(1) requires the Director to determine whether an applicant satisfies the means test provided for by s.21 and regulations made under that section, and also a merits test, constituted by "criteria set out in regulations made under this paragraph" (s.11(1)(b)). The means and merits tests apply both to in scope and out of scope provision. S.11 continues:
  10. "(2) In setting the criteria, the Lord Chancellor—
    (a) must consider the circumstances in which it is appropriate to make civil legal services available under this Part, and
    (b) must, in particular, consider the extent to which the criteria ought to reflect the factors in subsection (3).
    (3) Those factors are—
    (a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
    (b) the availability of resources to provide the services,
    (c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part,
    (d) the importance for the individual of the matters in relation to which the services would be provided,
    (e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
    (f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
    (g) if the services are sought by the individual in relation to a dispute, the individual's prospects of success in the dispute,
    (h) the conduct of the individual in connection with services made available under this Part or an application for such services,
    (i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and
    (j) the public interest.
    (4) In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which more than one form of civil legal service could be provided for an individual, the individual qualifies under this Part for the form of service which in all the circumstances is the most appropriate having regard to the criteria.
    (5) The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings.
    (6) Regulations under subsection (1)(b) may provide that no criteria apply in relation to a prescribed description of individual or services."

    The Merits Regulations

  11. The Merits Regulations made under s.11 of LASPO (by s.41(6) their making is subject to the affirmative resolution procedure in both Houses of Parliament) apply, like s.11 itself, both to in scope and out of scope provision. The Regulations encompass the criteria to be applied pursuant to s.11(1)(b). The citations which follow are from the text as it was before Collins J; they were amended following his judgment so that the statutory system might properly be operated while this appeal was pending.
  12. Regulation 4 requires the Director to assess, in accordance with the prospects of success test set out in Regulation 5, the likelihood that an individual will obtain a successful outcome at a trial or other final hearing. Regulation 5:
  13. "(1) Where the Director assesses, for the purposes of these Regulations, the prospects of success of a matter to which an application for civil legal services relates, the Director must classify the prospects of that matter as follows—
    (a) 'very good', which means an 80% or more chance of obtaining a successful outcome;
    (b) 'good', which means a 60% or more chance, but less than an 80% chance, of obtaining a successful outcome;
    (c) 'moderate', which means a 50% or more chance, but less than a 60% chance, of obtaining a successful outcome;
    (d) 'borderline', which means that the case is not 'unclear' but that it is not possible, by reason of disputed law, fact or expert evidence, to—
    (i) decide that the chance of obtaining a successful outcome is 50% or more; or
    (ii) classify the prospects as poor;
    (e) 'poor', which means the individual is unlikely to obtain a successful outcome; or
    (f) 'unclear', which has the meaning given in paragraph (2).
    (2) 'Unclear' means the Director cannot put the case into any of the categories in paragraph (1)(a) to (e) because, in all the circumstances of the case, there are identifiable investigations which could be carried out, after which it should be possible for the Director to make a reliable estimate of the prospects of success."
  14. But these tests for prospects of success do not apply across the board, and in some cases are by definition inappropriate. Thus for "legal help", which is negatively defined by Regulation 13 as meaning (I summarise) legal services outside court proceedings, legal aid will only be available if "it is reasonable for the individual to be provided with legal help…" and "there is likely to be sufficient benefit to the individual…": Regulation 32. In relation to mental health proceedings before the First-tier Tribunal, Regulation 51(2) provides that "[t]he Director must be satisfied that it would be reasonable in all the circumstances of the case for the individual to be provided with full representation". For a public law children case Regulation 66(2) provides:
  15. "An individual may qualify for full representation in a public law children case only if the Director is satisfied that—
    (a) it is reasonable for full representation to be provided, having regard to the importance of the case to the individual; and
    (b) if the individual is making or supporting an appeal or application, the prospects of success of that appeal or application are very good, good, moderate or borderline."

    The Guidance

  16. The Lord Chancellor's Guidance issued under LASPO s.4(3)(b) is not of course legislation, but it is convenient to set out here the only two paragraphs which are in contention. Paragraph 8 states:
  17. "The purpose of Section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach Section 10(3)(b) with this firmly in mind. It would not usually be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. The greater the risk of a breach, the more likely it is that it will be appropriate to make a determination. However, the seriousness of the risk is only one of the factors that may be taken into account in deciding whether it is appropriate to make a determination. Regard should be had to all the circumstances of the case."

    Paragraph 39:

    "Where an individual makes an application for Legal Help alone, caseworkers should consider particularly carefully whether the Section 10(3) criteria are met. It will not be sufficient that such assistance is merely helpful for the presentation of the case. The failure to provide Legal Help will in itself not usually amount to a breach of ECHR or enforceable EU rights to legal aid. In particular, where the source of the obligation to provide legal aid is Article 6(1), it should be recalled that the obligation can only arise where there is a 'determination of an individuals civil rights and obligations' and caseworkers should consider whether an application for Legal Help alone does in fact relate to such a determination".

    GUDANAVICIENE v LORD CHANCELLOR [2015] 1 WLR 2247 ("G")

  18. An appreciation of this earlier claim is important for an understanding of the issues in the appeal before us. G and the other claimants brought proceedings to challenge the decisions of the Director to refuse them legal aid under the ECF scheme. The claimant in the present case was one of the claimants there, but his case was not pursued in this court. The principal focus of the challenge was the Lord Chancellor's Guidance as it then stood – its compatibility with ECHR Article 6, and with Article 8 vis-à-vis immigration cases. Collins J upheld the challenge in a judgment delivered in June 2014. This court dismissed the Lord Chancellor's appeal in December 2014. Lord Dyson MR described the conclusions of the court as follows:
  19. "181. For the reasons we have given at paras 41 to 59 above in relation to ground 2, the Guidance is not compatible with article 6(1) of the Convention and article 47 of the Charter. It 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. For the reasons we have given at paras 64 to 77 above in relation to ground 3, the Guidance is not compatible with article 8 of the Convention in immigration cases. As is now conceded by the Lord Chancellor, para 60 of the Guidance wrongly states that there is nothing in the current case law that would put the UK under a legal obligation to provide legal aid in immigration proceedings in order to meet its procedural obligations under article 8."

    At paragraph 45 the court held that certain passages in the then Guidance "misstate the effect of the ECtHR jurisprudence" and "send a clear signal to the caseworkers and the Director that the refusal of legal aid will amount to a breach of article 6(1) only in rare and extreme cases. In our judgment, there are no statements in the case-law which support this signal". After making further reference to some of the Strasbourg cases, the Master of the Rolls continued at paragraph 56:

    "It can therefore be seen that 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. 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. It all depends on the circumstances. It should be borne in mind that, although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The outcomes in X v UK, Munro and McVicar show that it is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand, the outcomes in Airey, P,C and S, Steel and Morris and AK and L do not show that legal services are required only in such extreme cases as these. In short, we do not accept the submission of Mr Chamberlain that these decisions justify the passages in the Guidance which we have criticised at paras 44-45 above."
  20. The Guidance had to be re-written after G (given LASPO s.4(3)(b), the ECF scheme would not be viable if the Lord Chancellor's Guidance remained unlawful). The revision was published just before the first instance hearing in the present case. Paragraphs 8 and 39 are as they appear in the post-G Guidance. But for the purposes of this appeal G is, I think, significant for a different reason. It was a case in which the claims were by individual prospective litigants: at paragraph 184 of the judgment the individual cases were considered and decided. In this appeal the judicial review is generic: the assault is upon the ECF scheme as a whole. It therefore requires proof of a systematic failure; and this is not, certainly not necessarily, to be equated with proof of a series of individual failures.
  21. I turn to the grounds of appeal.
  22. GROUND 1A: ASSAULT ON THE JUDGE'S APPROACH

  23. The appellants have subdivided Ground 1 into two propositions. Ground 1A is that the judge below, having laid numerous criticisms at the door of the scheme, has not explained how or why they (or any of them) condemn the scheme as unlawful within the meaning of the appropriate test. Ground 1B is that in any event the scheme is lawful, and the judge's criticisms do not establish the contrary.
  24. Ground 1A cannot on its own carry the appeal: a failure by the judge to explain his conclusion that the scheme is unlawful does not, of course, make it lawful. But Ground 1A illuminates an important danger in the case. It is one thing to elaborate criticisms of a scheme of this kind – criticisms which (or some of which) may well be justified – but quite another to conclude that the scheme falls outside the boundary of lawful choices open to the responsible policy-maker. The distinction is no doubt elementary. The danger inherent in confusing the two is that the judge may cross the line between adjudication, which is his proper sphere, and the determination or promulgation of policy, which is not.
  25. The Test

  26. The cases have elaborated a test for the legality of schemes of this kind in terms of inherent unfairness. The test is critical to Ground 1B as well as Ground 1A; but it is convenient to address it here. In Tabbakh [2014] 1 WLR 4620 Richards LJ (with whom Aikens and Patten LJJ agreed) said this:
  27. "35. In my judgment, the question to be asked in the present context is a more straightforward one, namely whether the system established by the guidance in the policy documentation is inherently unfair by reason of a failure to provide the offender with a fair opportunity to make meaningful representations about proposed licence conditions. If it is, then the guidance itself may be found to be unlawful; but if it is not, the correct target of challenge is not the guidance but any individual decisions alleged to have been made in breach of the requirements of procedural fairness.
    36. The key authority is the decision of the Court of Appeal in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481, [2005] 1 WLR 2219. That case concerned a challenge to the decision to establish a fast track pilot scheme for the adjudication of asylum applications at Harmondsworth Removal Centre, on the ground that it was inherently unfair and unlawful because it compressed the decision-making process into three days. The Home Office filed evidence that claims which turned out to be particularly complex were removed from the scheme and that caseworkers were encouraged to adopt as flexible an approach as possible without compromising the integrity of the process. Giving the judgment of the court, Sedley LJ rejected a submission by [counsel for the claimant] that the question was 'whether the system was capable of operating fairly', pointing out that in a straightforward case the system was perfectly capable of operating fairly. He continued:
    '6… A more appropriate question, in our view, is the one posed by [counsel for the Home Office]: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham's alternative approach of seeking to construct a 'typical' case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry… at unacceptable risk of being processed unfairly. This, therefore, is the question we propose to address.
    7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects…'"
  28. The test was further considered by this court in Detention Action [2015] EWCA Civ 840, [2015] 1 WLR 5341, in which a 'fast track' system for the determination of refusals of asylum claims was challenged as being systemically unfair. The Master of the Rolls (with whom Briggs and Bean LJJ agreed) said:
  29. "27. I would accept Mr Eadie's summary of the general principles that can be derived from these authorities: (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness…; and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts…"
  30. The "irreducible minimum of fairness" must, of course, be judged against the background of the statutory context – here, LASPO s.10. I should note that the claimant has prayed in aid the seminal authority of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997: "[i]t has long been a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act which conferred it". But the reference is, I think, apt to mislead. The appellants have not acted to promote an end or goal which is at odds with the statutory purpose (that would be the classic Padfield case). The reality of the claimant's argument is rather that the scheme does not measure up to s.10; and in that sense frustrates it. Upon that issue, Padfield carries the case no further. The need to judge the "irreducible minimum of fairness" against the background of LASPO s.10 is not a mandate of that authority; it is required by the ordinary need to have regard to context in the application of any legal rule.
  31. While addressing the applicable test, I should add that I think this area of the law is prone to a particular difficulty. The subject-matter is a system which has to cater for many individual cases: how, then, in principle does the law encapsulate the difference between an inherent failure in the system itself, and the possibility – the reality – of individual instances of unfairness which do not, however, touch the system's integrity? The question points up the danger I have already outlined, that the judge may cross 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 is in considerable measure a matter of degree, and therefore of judgment. As the Master of the Rolls said at paragraph 29 of Detention Action, "the concepts of fairness and justice are not susceptible to hard-edged definition". The strength of the evidence supporting a challenge to the system as a whole will obviously be crucial. But as I have said, proof of a systematic failure is not to be equated with proof of a series of individual failures. There is an obvious but important difference between a scheme or system which is inherently bad and unlawful on that account, and one which is being badly operated. The difference is a real one even where individual failures may arise, or may be more numerous, because the scheme is difficult to operate.
  32. The Judge's Criticisms of the Scheme: Summary

  33. With these considerations in mind I may turn to Collins J's criticisms of the scheme. His task was a heavy one: there were twelve lever arch files of evidence (all of which the judge indicated he had read) and what was described as a Scott Schedule setting out 19 alleged defects in the scheme together with the respective observations of the claimant and appellants upon each of them. There were no fewer than 85 witness statements, including statements from providers who had made 20% of all ECF applications. We have not ourselves read every statement, though many have been read. All of us have studied the Scott Schedule carefully. It gives a detailed account of the material.
  34. I must address some of the particular points made by the judge in due course, but for present purposes I may adopt the very helpful summary of his criticisms of the scheme set out in the appellants' skeleton argument at paragraph 17 (the numbers refer to paragraphs in the judgment):
  35. "(i) The complexity of the ECF application form [53, 56, 80 and 105];
    (ii) The level of detail that applicants for ECF were required to provide [54, 65, 80 and 105];
    (iii) The requirement for an applicant to provide details of his means before his ECF application was considered [63];
    (iv) The absence of a formal emergency procedure for considering ECF applications in urgent cases [77];
    (v) The manner in which the Legal Aid Agency approached the merits test, which the learned judge found involved consideration of the merits on the assumption that the applicant would remain unrepresented, and also found to amount to an unacceptable pre-judgment of the decision that the court would reach in the litigation for which funding was sought [96 & 106];
    (vi) The absence of sufficient guarantees within the ECF system to protect the applicant from arbitrariness and, in particular, the absence of a right of appeal to a judicial body against refusal of ECF in circumstances in which the result of refusal would be an infringement of the very essence of the right of access to a court [92-93 & 107];
    (vii) The absence from the scheme of arrangements to pay providers for doing the preliminary investigative work (which may include obtaining expert evidence) which may be needed to determine whether a client has a proper claim for ECF [57, 59 and 105]."

    I should note that the judge also (paragraphs 35 – 40) drew attention to particular difficulties that had arisen in family cases.

  36. The summary in the appellants' skeleton is certainly useful, but does not quite convey the judge's own emphasis on the complexity of the ECF application form as the major factor in the scheme's defects. At paragraphs 79 – 80 Collins J said:
  37. "79… I am entirely satisfied that the scheme is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS's case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal.
    80. The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of 20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended."

    It will be seen that the judge's formulation at paragraph 79 ("present his or her case effectively and without obvious unfairness") is taken directly from the Master of the Rolls' judgment in G at paragraph 56. G was, as I have said, a challenge to individual refusals of legal aid under the ECF scheme, not an assault upon the scheme as a whole (although the court found generic faults in the then Guidance). I should also note the judge's observation at paragraph 105, that "[c]onsideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act": Miss McGahey QC, who argued Ground 1 for the appellants, submits (skeleton paragraph 20) that Collins J's admonition to "consider" the provision of Legal Help is inapt as a finding of legal fault, but is by contrast a good example of the focus of his judgment upon perceived individual deficiencies rather than the application of the test of inherent unfairness to the scheme as a whole.

    Conclusion on Ground 1A

  38. I should say that Mr Hermer QC for the claimant lays at the appellants' door (paragraph 23 ff of his skeleton) an assault on the judge's evaluation of the voluminous evidence. But that is not the thrust of the appellants' submission. There is no substantial dispute as to primary fact; the argument on both sides is in truth directed towards the inferences to be drawn from the facts for the purpose of applying the test of inherent unfairness to the scheme. On Ground 1A, Miss McGahey submits as I have said that the judge nowhere explains how the raft of criticisms he levels at the scheme combine to demonstrate that the test of inherent unfairness is made out.
  39. Collins J nowhere refers to the learning encapsulated in Tabbakh or Refugee Legal Centre. He was by no means obliged to do so in terms; but it should have been apparent from his judgment that the correct test was applied. I do not think the judgment makes that plain. I note in particular his criticisms of the ECF form (and the merits form) at paragraphs 53 ff. I describe the forms and the criticisms below in addressing Ground 1B. The points the judge makes are in essence a series of individual exhortations to improvement. Taking these together with paragraphs 79, 80 and 105 which I have set out, I consider that Collins J's approach to the case does not clearly gather his strictures into a reasoned conclusion to the effect that the scheme fails to meet the test. To that extent I think Ground 1A is well-founded. But it remains for this court to decide whether or not the test is in truth met, and that, of course, engages Ground 1B, to which I now turn.
  40. GROUND 1B: THE LEGALITY OF THE SCHEME

  41. In my judgment the central issue on this part of the case is whether there is so great a deficiency of access to civil legal aid for those who ought by force of LASPO s.10 to be assisted, that the scheme should be condemned as inherently unfair. Mr Hermer submitted that the extensive evidence, in three broad categories, requires such a condemnation. These categories consist in evidence that (1) the scheme is inaccessible to lay persons; (2) potential claimants are substantially unable to obtain representation; and (3) these difficulties are magnified for persons without litigation capacity. The categories are distillations of Points 2 – 4 set out in Mr Hermer's skeleton argument at first instance (paragraphs 32 – 55), where they are gone into at some length. Mr Hermer's skeleton in this court specifically cross-refers (paragraph 9.1) to his skeleton below. The starting-point for all three categories is the terms of the ECF form.
  42. The ECF Form

  43. The ECF form is headed "Application for Exceptional Case Funding". It runs to 14 pages. This appears in bold type on the first page: "[a]ny work done prior to a decision on an unsuccessful application will not be remunerated. No payment will be made for unsuccessful applications". The form is on its face directed to legal representatives rather than lay applicants. Thus it seeks "Your client's details" and "Provider details" – Solicitors Roll number". It asks "Does your office have a contract that allows you to do Legal Aid work in this Category of law…?" Collins J proceeded to describe the form as follows:
  44. "48. The ECF application form requires the giving of information under five headings, A to E. There are four separate sub-headings in A under the heading 'Generic Information'. The first asks 'How important are the issues at stake for the client?', the second asks 'How complex are the proceedings, the area of law or the evidence in question?'. It continues:-
    'You should discuss factual, procedural and legal complexity. Please specify the court, tribunal or other forum in which the case will be heard (e.g. First Tier Tribunal, County Court, High Court).'?
    The third asks 'how capable is the client of presenting their case effectively?' It continues:-?
    'Please consider the client's education or relevant skills/experience, any relevant disabilities, the client's capacity, including whether a litigation friend may be able to conduct proceedings on the client's behalf.'?
    The fourth requires that any additional information that is relevant to the question of whether ECF should be made available is specified.
    49. Section B is headed 'Legal Aid under Article 6 ECHR' and contains the question 'Does the case involve a determination of the applicant's civil rights and obligations?'. If the answer is yes, reasons should be given providing references to any supporting case law if appropriate. The second question is whether the failure to provide legal aid would be a breach of the client's right under Article 6(1) ECHR. If the answer is yes, the same requirement to give reasons and refer to supporting case law is stated.
    50. Section C is headed 'Other ECHR Rights'. It asks whether the failure to grant ECF would breach any other ECHR right, and, if so, reasons and, if appropriate, supporting case law should be provided. Section D asks the same question and requires the same information if it is said that the failure to grant ECF would breach an enforceable EU right to legal services, for example under Article 47 of the Charter of Fundamental Rights.
    51. Section E asks for the extent of the services to be provided. This requires the level of services to be specified under the three headings: licensed work, special case work services and controlled work services. These are defined in the Procedure Regulations as I have already indicated. Reasons must be given why the services requested are the minimum required to meet the obligations under ECHR or EU law.
    52. Finally, there is a section which deals with urgent case details, limited to licensed work or special case work services. It asks for details of any imminent dates for an injunction or other emergency proceedings, for a hearing or for the expiry of a limitation period. The questions posed are first whether a delay would 'cause risk to the life, liberty or physical safety of the client or his or her family or the roof over their heads?'. The second question is whether a delay would 'cause a significant miscarriage of justice or unreasonable hardship to the client, or irretrievable problems in handling the case?'. If either question is given a positive answer reasons must be given."

    There are two further forms, seeking details of the applicant's merits and means. These apply both to in scope and out of scope cases. The merits form is not needed when, for example, an ECF application is for Legal Help.

    The Judge's Criticisms of the ECF Form

  45. Collins J criticised the ECF form on a number of counts. There was no need to distinguish between Article 6 and other ECHR rights (paragraph 53); there was no reason why a form for lay applicants should not be provided: it "need do no more than require the information set out in the website" (54: I will come back to the website in dealing with the appellants' case); the merits forms are "undoubtedly far too complicated for litigants in person" (55); there should be a simplified form for practitioners: "[a] form can set out the [G] test and ask why legal assistance is needed in order to satisfy that test" (56); access to Legal Help should be addressed in circumstances where the solicitor perceives that work is required to determine whether the client in fact needs funding: "[c]onsideration must… be given to this since the evidence is that solicitors are for good reason not prepared to engage in work for which payment is not likely to be received" (57). This last criticism is described by Collins J as a "fundamental defect in the form and the scheme". Alongside his criticisms of the form, at paragraph 65 the judge referred to the "LAA's insistence on a high level of detail. Examples are given of failure without corroborative evidence to accept particular assertions, for example, in relation to capacity of applicants said to suffer from mental problems".
  46. Paragraph 105, to which I have referred in addressing Ground 1A, recapitulates most of these points in summary form. The judge also disapproved of the absence of what in his view would amount to a satisfactory procedure for dealing with emergency applications: paragraphs 77 – 78:
  47. "For in-scope applications, those which are urgent are to be dealt with in 48 hours and full merits and means forms will be required only if the emergency certificate is granted. I have already noted that regulation 66(3) of the Procedure Regulations disapplies this urgent case procedure for ECF applications. It is difficult to understand the reason for this since the need for urgent assistance will be the same whether or not the case is within scope." (paragraph 77)

    And at paragraph 93:

    "The right to seek judicial review (which is in scope) is not an entirely satisfactory remedy since it is only possible to quash a refusal if an error of law is established. Essentially, in most cases it would be necessary to show that the decision was irrational in Wednesbury terms. In my view, the system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the very essence of the right of access to a court."

    The Claimant's First Point: Lay Applicants

  48. While it is of course for the appellants to make their case on the appeal, I find it convenient to introduce the treatment of Ground 1B by reference to Mr Hermer's three categories. I shall consider the appellants' submissions after describing the three points as Mr Hermer has advanced them. The first was that the scheme is inaccessible to lay persons.
  49. To a considerable extent this point speaks for itself. The form is directed to professional lawyers. It is a complex document. Some of the questions are technical. It must be obvious that very few lay applicants could complete the form accurately without professional assistance. As I understand it only one applicant acting in person has carried through the process without such assistance until a late stage, and obtained a grant of ECF. Collins J gives an account of the case:
  50. "60. It is instructive to follow the evidence of an individual who has tried to apply in person. The successful applicant is known as JLE. She describes her experience of trying to get legal assistance as a total nightmare. I need not go into great detail. Suffice to say that she had had a most unfortunate history of abuse when a child and suffered from post natal depression. She was convicted of administering a toxic substance to her very young daughter. As a result of this and her then mental condition, care proceedings were instigated by the local authority in respect of her daughter and her as yet unborn son. It must have been obvious that her desire to maintain contact with her children engaged her Article 8 rights and involved a difficult case which she would be unable to deal with if unrepresented. Her application was refused in a very lengthy but seriously flawed response. She wished to apply for a review. She says (and this is not disputed) that the person to whom she spoke tried to dissuade her on the basis that the matter was not complex. She was advised to go to different solicitors (she had approached her former solicitors) or to a CAB and seek pro-bono help. She had to attend a hearing, which fortunately turned out not to be of great importance, unrepresented, an experience she found incredibly stressful. This was because of delays by the LAA. Eventually, ECF was provisionally granted subject to full means information being supplied.
    61. JLE concludes:-
    ?'In my experience solicitors in my area are not (at least in the absence of payment) willing to help people to make applications for [ECF]. Further, the LAA made no concessions at all for the fact that I was unrepresented. I was actively requested to fill in lengthy and complicated forms, refused funding for legal reasons I could not understand, discouraged from appealing and ultimately denied the positive decision to which I was entitled in time to enable me to be represented.'"
  51. Mr Hermer draws attention to the fact that (Scott Schedule p. 6) "[g]uidance for lay applicants was requested by PLP [the Public Law Project] and the Legal Aid Practitioners Group on 4 March 2013… but has never been provided". Further details of the difficulties which have faced individual lay applicants are summarised in the Scott Schedule at pp. 7 – 11. It is said that "[t]he LAA has provided unhelpful responses to direct applicants" (p. 8), and a number of examples are given. Some, certainly, make sorry reading. Thus:
  52. "Application tab 1: the unsuccessful applicant was told to contact a solicitor for advice.
    Application tab 2: the application was refused because the ECF form was unsigned (when that is not supposed to be a precondition for a direct client application).
    Application tab 6: the unsuccessful applicant was told that a full determination could only be made by lodging a full set of completed forms signed by a solicitor.
    Application tab 10: the application was refused for failure to complete form MEANS1 (when that is not supposed to be a precondition for a direct client application).
    Application tab 25: the LAA refused to reconsider the matter unless fully completed CIVAPP1, CIVECF1, CIVMEANS forms and supporting documentation were provided."
  53. It is plainly difficult to find any justification for these largely negative responses – or most of them – even in bureaucratic terms. But the question is whether they do not merely rank as individual shortcomings, but go further and lend material support to the case for inherent unfairness in the system.
  54. JLE's case is set out under the claimant's comments at pp. 9 – 10 of the Scott Schedule. There is an additional comment at p. 6: "JLE… was initially told by the LAA that she did not need ECF because by making the application she had shown that she was able to convey her concerns effectively". The appellants' response to the JLE case is noted at pp. 7 – 8: "[t]he LAA accepts that it could have been more helpful to JLE… On review, JLE supplied much more information. The LAA made attempts to keep her updated. ECF was granted after her solicitors made a full ECF application".
  55. Other responses by the appellants include a reference to the case of KB, who (Scott Schedule p. 10) was refused ECF for family proceedings, inducing very trenchant observations from the judge in the proceedings, that "if ever there were a case that qualified [for ECF] this is it". The appellants are noted (p. 8) as stating: "[t]his case pre-dated [G]… The Defendants accept that it would have been better for the decision-maker to seek further information on the contact application before refusing the ECF application." That the case pre-dated G exemplifies a more general difficulty: it is not clear how far the same is true of other instances, adduced as anecdotal evidence by the claimant.
  56. Mr Hermer submits that the material supporting his first point amounts to a powerful, evidence-based case demonstrating that many individuals have been and are unable to access the scheme without professional support and advice.
  57. The Claimant's Second Point: Difficulties of Representation

  58. The claimant's second point is that such professional support and advice is (Mr Hermer would say this puts it too low) very hard to find. There is a great deal of material on this part of the case gathered in the Scott Schedule (pp. 11 – 21) under the heading "Solicitors are generally unwilling to make applications for ECF where there is no existing relationship with the client". A key feature is that, as the ECF form makes clear, no payment is made for unsuccessful applications or for any work done on an application which proves unsuccessful. Between pp. 13 and 18 the Scott Schedule lists some 27 instances of individual providers with extracts from evidence given by them showing, on the claimant's case, a pervasive reluctance or inability to undertake ECF applications. Some offer much more detail than others. One of the more forthright examples is this extract from the evidence of Mr Hundt of Messrs. Deighton Pierce Glynn (Scott Schedule p. 17):
  59. "We already carry out a lot of work pro bono, at low cost, and at non-commercial rates. We have done so for many years and will continue to do so. Our commitment to meaningful access to justice for our clients demands it. However, balancing this commitment with the financial realities of publicly funded work to maintain the viability of the practice is a constant challenge, and one that is becoming increasingly difficult with further restrictions on the scope of legal aid and its terms. There simply isn't scope within this already fragile model to add into the mix a source of funding which is marred by a disproportionately large amount of initial unpaid administrative work, significant delays, a disproportionately high refusal rate and the absence of a sufficiently certain set of funding criteria to enable informed decision to be made on case selection. And which, even at the end of this, even if successful, pays for our work at rates which do not even cover our overheads."

    The appellants' somewhat terse comment on Mr Hundt's evidence is set out on p. 12 of the Scott Schedule:

    "Mr Hundt, while criticising the ECF scheme, acknowledges that he has limited experience of it. He has provided too few details of the case in which he was involved for the Defendants to be able to identify it."
  60. Mr Hermer took us to further evidence evincing the difficulties, including material from some of the witness statements. This passage from his skeleton argument (paragraph 25.2) summarises much of it:
  61. "It is economically irrational for legal aid firms to work on ECF applications where (i) unsuccessful applications are unpaid, (ii) 87% of applications are unsuccessful, (iii) it takes many hours to make an application, which would otherwise have been spent on chargeable work, (iv) successful applications are paid at ordinary legal aid rates and (v) legal aid firms are struggling to survive. In those circumstances, it would be surprising if legal aid firms were willing to make applications. The evidence before the Judge from legal aid providers was that they were unwilling to act in an economically irrational way and would not make ECF applications for new clients. The volume and quality of that evidence was unprecedented in judicial review proceedings; it came from firms responsible for making 20% of all ECF applications and 44% of all successful applications ever made."

    Points (iv) and (v) in this summary reflect the impact of recent legal aid reforms which also receive attention in the claimant's observations in the Scott Schedule at pp. 11 – 12:

    "The legal aid reforms have reduced the supply of legal aid services:
    - The number of civil and family legal aid providers fell by almost a quarter in 2013-14 compared to 2012-13 (Laspo One Year On, Bar Council report, para 177…).
    - There are 14 local authority areas in which no face-to-face civil legal aid work was started and 39 in which fewer than 49 pieces of legal work per 100,000 people was started in 2013-14 (National Audit Office, Implementing reforms to civil legal aid, 20 November 2014…). The Law Society has warned that 'the future sustainability of legal aid practice is in significant doubt' (Justice Committee, Report on the Impact of Changes to Civil Legal Aid, 5 March 2015, para 77…).
    Firms that continue to do legally aided work operate on much reduced profit margins. Fees paid for legal aid have not been increased for inflation since 1998-99, which equates to a real-terms reduction of 34% (Public Accounts Committee, Report on Implementing Reforms to Legal Aid, 19 January 2015, para 19…). On top of that, the Ministry of Justice cut fees by 10% from 3 October 2011 (The Community Legal Service (Funding) (Amendment No.2) Order 2011). This means that legal aid providers have little capacity to do unpaid work."

    The relevance of the legal aid reforms, on Mr Hermer's case, is not merely the bare fact that solicitors who do legal aid work operate on much reduced profit margins. It is also that unsuccessful ECF applications may have an impact on key performance indicators, and therefore the security of a firm's legal aid contract. The judge made this point at paragraph 47. An agreed table of non-inquest ECF applications and grants (page 394 of the Core Bundle) shows that the overall percentage of applications between April 2013 and March 2015 which resulted in ECF grants was no more than 5.4%.

  62. The last sentence quoted above from the Schedule – "legal aid providers have little capacity to do unpaid work" – states an inference, but I do not understand it to be substantially disputed as a matter of fact. The appellants' observations on the claimant's comments about the legal aid reforms are also to be found at pp. 11 – 12 of the Scott Schedule:
  63. "It is the LAA's experience that solicitors/providers are willing to make full ECF applications on behalf of their clients, across different areas of law…
    By way of example, Mr Furner, on whose evidence the Claimant relies, says that, while he is disillusioned with the ECF process and expects to have to litigate to achieve ECF (his firm having been involved in only 8 applications) he will still apply for ECF in an appropriate case…
    Legal services providers routinely make judgments about degrees of risk, and accept or reject business accordingly. It is not unreasonable to expect them to do so in respect of the relatively small cost of making ECF applications, and to manage time and disbursements accordingly."

    One of the difficulties in the case is to decide what the court should make of judgments of the kind expressed in that last paragraph, involving as they do perceptions and understandings which are to some extent subjective in nature. Mr Hermer would say that the proof of the pudding is in the eating, and would point to the extensive evidence of widespread reluctance on the part of providers to undertake this kind of work.

  64. Another aspect of this part of the case is the time it takes to make an ECF application (point (iii) in the summary taken from Mr Hermer's skeleton). The Scott Schedule collects much anecdotal evidence of this at pp. 22 – 27. Broadly the claimant says that the process typically takes 6 – 10 hours, sometimes much longer. The time taken is said to be "increased by the LAA's insistence on a high level of detail and supporting documentation – the LAA often refuses to accept statements supported by statements of truth without corroborating evidence" (Scott Schedule p. 31). The appellants' observations in the Schedule reveal a degree of controversy as to the extent to which this is so. On the claimant's case the problem is exacerbated by the requirement that means and merits forms be completed at the outset. It is also said to be significant that the first appellant allows his caseworkers up to one full day to determine the merits of an application for ECF.
  65. In summary on this second point, Mr Hermer's case is that on the evidence the availability of professional support and advice for the making of ECF applications is so exiguous that, not least given the first point as to the difficulties of lay applicants, the scheme should be condemned as inherently unfair and Collins J was right so to condemn it.
  66. The Claimant's Third Point: the Difficulties are Magnified for Applicants without Litigation Capacity

  67. Like the claimant's first point concerning the difficulties facing lay applicants, this aspect largely speaks for itself. Manifestly a child or mentally incapacitated person could not make an effective application without assistance. Then at paragraph 51 of his first instance skeleton Mr Hermer submitted that the financial disincentives for providers are magnified when dealing with children and individuals with mental impairments because it takes even longer to investigate the application. Two examples are given. It is also said to be more likely that significant disbursements will need to be paid to evidence the mental impairment, because the LAA, it is said, will not usually accept a solicitor's description of the impairment, but has required corroborating evidence and/or a formal assessment. As to that the judge noted at paragraph 75:
  68. "It is said that evidence is not now requested and cases in which that request was made occurred in the early days and are not to be repeated. Nevertheless, there have been instances when information perhaps in the form of existing reports has been requested."
  69. The earlier skeleton also raises complaints about the Guidance, but I shall deal with the only surviving points on the Guidance separately. Overall on this part of the case, which most directly concerns the claimant as a protected party for whom the Official Solicitor acts, Collins J said this:
  70. "73. The OS has particular concerns for patients, namely persons lacking mental capacity, and children who cannot engage in litigation without a litigation friend. He is a litigation friend of last resort in the sense that he will act only where no other litigation friend can be found. He will not, save in rare cases, himself conduct litigation and needs to have external funding… It must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned. The response given is that a litigation friend can conduct the litigation and can apply for ECF. Equally, it is said that a litigation friend can conduct a case and so can be expected to be treated in the same way as would a litigant who had capacity. The evidence from Mr Bryant, the head of ECF determinations in the LAA, is that the ECF team does not expect litigation friends to conduct the litigation as advocates, but they step into the protected person's shoes. The same point is made by the policy manager in the Ministry of Justice's legal aid policy team, Mr Holmes, in his statement.
    74. There is a powerful disincentive for a litigation friend to act since he or she undertakes not only to pay the protected person's costs but any costs that the court may order to be paid by the protected person. While the litigation friend will expect to recover from the protected person such costs, that is unlikely to be realistic when the protected person lacks means and so could be financially eligible for legal aid. Equally, a litigation friend is under a duty to act always in the protected person's best interests and those may not be in accordance with the protected person's views, albeit those views must always be put to the court. Thus in many cases it would be inappropriate for a family member (for example a parent of a child) to act as a litigation friend since there may be a need for objectivity which could not be met. Further, McKenzie friends cannot be used. It follows that in many cases involving impecunious children or adults who lack capacity there will be real difficulties in finding a litigation friend prepared to act having regard in particular to liability for costs. Thus the OS may have to act if approached. He will not normally be able to act for an impecunious individual, unless, absent a CFA or a costs undertaking from the opposing party, there is legal aid."
  71. Mr Hermer's argument is a simple one. In the case of a protected person lacking capacity, the prospect of making an ECF application without professional assistance is impossible, and the prospect of obtaining professional assistance even more difficult than it is for an individual with full capacity.
  72. The Appellants' Case on Ground 1B: the Website and Helpline

  73. It is convenient to arrange the points to be made on the appellants' case on Ground 1B under different headings from Mr Hermer's three categories. There is some further factual material to consider. There is, first, the website (available from 1 June 2014), and a telephone helpline which is manned by caseworkers or lawyers employed by the LAA during normal working hours. The website includes links to provider information packs (for both inquest and non-inquest cases). There are two sections respectively headed (in the June 2014 version) "Applications from a legal aid provider" and "Applications made directly by clients". The latter has the following text:
  74. "You can apply directly to the Exceptional Case Funding team at the Legal Aid Agency. You don't have to name a solicitor in the application.
    How to apply
    It may help you to provide the right information if you use the forms for making legal aid applications.
    The CIV ECF1 form asks questions about why you're applying for exceptional funding. The means and merits forms ask questions about your financial circumstances and your case. If you need help about which form to use then phone us or email the Exceptional Case Funding Team (ECF).
    If you don't use the forms we can only give you a preliminary view based on your information.
    As a minimum, send the following to us in writing:
    . Background to your case, including all the main facts.
    . What you need legal advice on or what court proceedings you need representation in. Explain why you cannot represent yourself.
    . What outcome you wish to achieve.
    . Information that will support your application eg court applications and orders, expert and medical reports, copies of any decisions you wish to challenge.
    . Information on your financial situation.
    We cannot give you legal advice on the merits of your underlying case but we will consider your application.
    What happens next?
    We'll send you a decision in writing.
    If you sent us information about your case instead of filling out the form, we can only provide you with a preliminary view. This is not a guarantee that exceptional funding will be granted after consideration of a full application. Also, we may change our decision either way if, for example, new information or evidence is provided to us. Whatever decision we make you may seek help from a legal adviser."

    The website than gives an address for the ECF Team, an email address, and a telephone number.

  75. Miss McGahey submits that the website and helpline provide material assistance to applicants.
  76. The Appellants' Case on Ground 1B: Complexity of the ECF Form

  77. Miss McGahey submitted that the contents of the ECF form do no more than reflect the statutory test for out of scope legal aid under LASPO s.10. No doubt improvements could be made. But the form's imperfections do not amount to a condemnation of the scheme's legality, which is not to be measured by reference merely to the possibility that a better job might be done. There is a cross-over here between Grounds 1A and 1B: as I have already held, the points the judge makes are in essence a series of individual exhortations to improvement. It is to be noted in this context that Richard Miller, Head of Legal Aid at the Law Society, said during the consultation process relating to the ECF scheme:
  78. "…There is general concern about how long the form is, and the practicality of practitioners being asked to take on such work for free. However, given the nature of the test the Government has set, I am not convinced there is a lot the LSC can do about that…"
  79. Miss McGahey submits that there are in any event difficulties with some of the judge's criticisms. Thus if the form contained no more than what is stated on the website (judgment paragraph 54), the information would not be sufficient to permit LAA caseworkers to make a s.10(2) determination. And to the extent that the judge thought that the process was needlessly prolonged by the requirement for completion of the means form at the same time as the ECF form (I think this criticism is no more than implicit in the judgment – paragraph 54), it is said that delays in making ECF awards would arise if the LAA first made a decision on ECF criteria and then sought means (and merits) information. If an applicant does not satisfy the means test, he or she will be ineligible for legal aid. The means assessment involves a straightforward test which does not require the provision of legal advice or the exercise of discretion by LAA. As regards the judge's reference to the LAA's insistence on excessive detail (paragraph 65), "the appellants maintain that it is entirely reasonable for them to request, for example, information relevant to capacity such as learning difficulties or a long-standing mental health condition which is said to prevent an ECF applicant from representing himself" (skeleton argument paragraph 28). Then there are the judge's strictures about an emergency procedure. But the emergency procedure applicable to in scope applications was (as the judge noted) disapplied in ECF cases by paragraph 66(3) of the Civil Legal Aid (Procedure) Regulations 2013, and there has been no challenge to the vires of that measure. The ECF form in fact contains two sections where the applicant is invited to provide any details of urgency, and the LAA prioritises those applications it assesses to be urgent.
  80. Overall Miss McGahey submits that these criticisms levelled by the judge, enforced as they are by Mr Hermer's submissions, do not demonstrate that the scheme is inherently unfair. But her argument on these points has to be set alongside the next element in the appellants' case: facts and figures.
  81. The Appellants' Case on Ground 1B: Facts and Figures Relating to ECF Applications

  82. Summarising the scope of the evidence in the case, Collins J observed at paragraph 28:
  83. "Statements have been lodged by providers who have made some 20% of applications for ECF. This has been relied on by Mr Chamberlain in submitting that it cannot be said to represent other than a relatively small proportion of those who have made such applications. In addition, the first defendant has evidence from Helen Keith, a solicitor in his ECF team, making the point that some 24 of the providers who have lodged statements have not submitted any application for ECF, a further 20 have submitted only one and a further 13 only two. This is relied on to suggest that there has been insufficient knowledge or experience of the scheme to justify the criticisms. Further, overall the point is made on the defendants' behalf that much of the evidence relied on relates to an approach dictated by the guidance which set too high a threshold and which I and the Court of Appeal decided was unlawful."
  84. Miss McGahey adopts this. She says that these facts, not least the fact that the court lacks information from providers who made some 80% of ECF applications, weaken the claimant's general complaint as to the difficulties and disincentives faced by actual or potential providers; and they tend to undermine the specific complaint that the scheme made no provision for payment for preliminary investigative work, where applications are unsuccessful (an issue also addressed by the appellants' observations in the Scott Schedule at p. 22: "Remunerating such applications would risk potentially large volumes of unmeritorious claims being made at public expense"). There is also an associated point: there is a degree of uncertainty (I think Miss McGahey would put it higher) as to the proportion of problems and difficulties spoken to in the evidence relied on by the claimant as regards which the relevant facts occurred before the decision in G.
  85. Miss McGahey draws attention to an increase in the success rate in grants of non-inquest ECF since the decision in G. The judge noted this himself:
  86. "29. Until my decision in June 2014, the success rate in grants of non-inquest ECF amounted to a little over 1%. That on any view is a very worrying figure. It has since increased. There has been some argument about the precise calculations, but I need not go into detail. Suffice to say that I am satisfied from the claimant's evidence, albeit the defendants have said that the success rate has risen above 15%, it is more likely to be, when proper account is taken of the limitation to non-inquest cases, about 13%. That remains a very low figure."

    The 1% and 13% figures are largely borne out by a useful table before us, to which I have already referred (page 394 of the Core Bundle), showing the figures for non-inquest ECF applications between April 2013 and March 2015. The total number of applications was 2258, and the total number of grants 123. Before Collins J's judgment in G was handed down in June 2014 the success rate was steady at about 1% (2.1% between October and December 2013). Then in April – June 2014 it rose to 7.9%, with a peak of 16% between October and December 2014.

  87. It is convenient at this stage to refer to another table, which gives details of 31 ECF grants (some 25% of the total 123) to applicants assisted by the Public Law Project. Five of these grants were made by the LAA on first application; three on review; 16 after issue of a pre-action protocol (or other "notification of unlawfulness") and 7 after issue of judicial review proceedings. These details might be thought to support Mr Hermer, as giving some indication of the difficulties which the scheme makes for providers – over half of PLP's grants were obtained after proceedings or the threat of proceedings. But they can also be seen as showing, as they plainly do, the importance of the judicial review jurisdiction in overseeing the decision-making process under the scheme. The Strasbourg court has recognised the importance of judicial review in relation to the grant or withholding of legal aid: MAK v UK (2010) 54 EHRR 14, paragraph 45. The appellants would I think say that the use of judicial review to correct errors by the LAA tends to undermine the judge's conclusion at paragraph 93, which I have read, that judicial review is "not an entirely satisfactory remedy" and that a right of appeal should be provided.
  88. In this connection, an important part of the context rests in the fact that since the introduction of the scheme both the LAA and providers have experienced something of a learning curve. So much is vouched by evidence summarised in a series of references in the Scott Schedule. They include the following. "The LAA accepts that it could have been more helpful to JLE" (Scott Schedule p. 4); "the [appellants] accept that it would have been better for the decision-maker to seek further information on the contact application before refusing the ECF application" (p. 8; the reference is to the case of KB); "the [appellants] accept that making a first application for ECF will require particular thought. The process should become easier with subsequent applications" (p. 24); "the [appellants] accept that the decision, which was made before [G], would have been different if made after that case. The decision-maker's reasoning was poor…" (p. 34); "the LAA accepts that, particularly in the early stages of the ECF scheme's administration, caseworkers sometimes said that there was no evidence of individual vulnerability" (p. 45); "the [appellants] accept that errors were made, particularly in the early days of the ECF scheme" (p. 55). There are a number of other instances in which the LAA accept that mistakes were made (and in many cases corrected). There are also references to better decision-making after G, a fact reflected, no doubt, in the increase in the success rate.
  89. Conclusion on Ground 1B

  90. At paragraph 18 I said that while the dividing line between multiple instances of unfairness and an inherent failure in the system is in considerable measure a matter of degree, nevertheless proof of a systematic failure is not to be equated with proof of a series of individual failures. For the purpose of Ground 1B, this distinction takes centre stage. On which side of the line does this case fall? Given the extent to which the question is one of degree, it has been necessary to enter into a good deal of factual detail. That process has its pitfalls: as I have said (paragraphs 21 and 23 above, addressing Ground 1A) the judge's focus was upon perceived individual deficiencies rather than the application of the test of inherent unfairness to the scheme as a whole.
  91. There can surely be no doubt but that the overall thrust of Mr Hermer's case is that the scheme is so inaccessible to persons with a potential entitlement to ECF that it has to be condemned as inherently unfair. It is plain that there have been real difficulties; and there is no contest but that improvements could be made, not least to the ECF form. However the picture has changed for the better since G, though the success rate remains low and the number of applications strikes me as modest. But these facts themselves need to be treated with a degree of circumspection: we have no means of knowing what a proper or satisfactory success rate would be, or how many applications might reasonably be expected. Quite aside from the impact of G, moreover, there has been what I have called a learning curve, both for the LAA and for providers.
  92. In the result, while I recognise that such a judgment is inexact and even impressionistic, I have concluded that the scheme is not inherently or systematically unfair. I recognise that it is heavily dependent on the participation of providers, given the difficulties clearly faced by lay applicants and the absolute need of assistance for those with disabilities. However our knowledge of the attitudes of providers to the scheme is partial at best. So far as we can ascertain, their response to its challenges is by no means uniform, and in the nature of things will not be static: the learning curve will continue. It is also in my view significant that in assessing the legality of legal aid schemes the Strasbourg court has had some regard to the challenge posed by limited public resources: see paragraph 63 below and the cases of X and Ivison, discussed in the context of Ground 2. Moreover the website and helpline are, I think, of significant material assistance to potential applicants.
  93. In my judgment, while as I have said there have plainly been many difficulties, and the complexity of the ECF form has been common to many of them, the state of the evidence does not justify an across-the-board conclusion that the scheme is 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 LASPO s.10.
  94. The extent of the difficulties is however troubling. No doubt the LAA and the Lord Chancellor will be astute to look for improvements, and will do so on a continuing basis.
  95. GROUND 2: THE MERITS REGULATIONS

  96. The issue here is as to the legality of the merits tests for the grant of legal aid contained in the Regulations. I have set out or summarised the relevant provisions at paragraphs 7 and 8. The Regulations apply both to in scope and out of scope cases. Collins J acknowledged (paragraph 82) that "in deciding whether or not to grant legal aid the State is entitled to apply merits criteria. This has been upheld by the ECtHR in a number of cases". But he held (paragraph 96) that the need to demonstrate an even or greater than even chance of success was unreasonable as was the removal of the "borderline" category of cases: "[t]he rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable." (paragraph 106)
  97. Mr Hermer's position is conveniently stated at paragraph 27.1 of his skeleton argument as follows: "there will be no breach of the ECHR procedural rights where legal aid is withheld on merits grounds, providing that (i) the restriction on the right to present one's case effectively and without obvious unfairness is proportionate and (ii) the very essence of the right is not impaired"; and, he says, the Regulations fall short of these criteria.
  98. Mr Chamberlain submits that Mr Hermer's argument entails the proposition that in principle the legal aid decision-maker must always be prepared to set aside the merits test; but that is not supported by the Strasbourg jurisprudence.

  99. I shall return to that. It is first to be noted (as Mr Chamberlain submits at paragraph 39 of the appellants' skeleton) that the Regulations do not impose a uniform set of merits criteria; the criteria depend on the type of legal services and the category of case for which funding is sought. Examples where prospects of success do not have to be shown are Legal Help, Family Help (Higher), and certain classes of mental health cases, Court of Protection cases and public law children cases. As a feature of the Regulations this is I think material to Mr Chamberlain's submission that a key factor in the legality of arrangements for the grant or withholding of legal aid, in line with the Strasbourg cases, is that the process should not be arbitrary.
  100. Mr Chamberlain cited much authority to support that proposition. I shall not rehearse all of it. A leading instance is X v UK, App. No. 8158/78, (1980) 21 DR 95. In a passage which has been much repeated by the Commission and the Court, the Commission stated (paragraph 16):
  101. "It is self-evident that where a state chooses a 'legal aid' system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be legally aided. Such limitations on the availability of free legal aid, common to most Convention countries, often require a financial contribution or that the proposed litigation have reasonable prospects of success. In the Commission's view, Article 6(1) [sc. of the ECHR] does not require that legal aid be provided in every case, irrespective of the nature of the claim and supporting evidence. Where an individual is refused legal aid in a particular case because his proposed civil claim is either not sufficiently well grounded or is regarded as frivolous or vexatious the burden would then fall on him to secure his 'access to court' in some other way such as, for example, bringing the action himself or seeking assistance from some other source. Accordingly the Commission is of the opinion that where a prisoner has been refused legal aid on the basis that his claim lacks reasonable prospects of success such a situation would not normally constitute a denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary."
  102. Stewart-Brady v United Kingdom (1997) 24 EHRR CD38 is to like effect (indeed the Commission cited the X case), but is perhaps of particular interest because the claimant (a prisoner) was under a mental disability and so could not as a matter of law bring proceedings without a lawyer. Legal aid for a malicious falsehood claim was withdrawn on the grounds that there were no reasonable prospects of success and that the costs of funding the litigation were likely to be disproportionate to any damages awarded. In Aerts v Belgium (2000) 29 EHRR 50 and Gnahoré v France (2002) 34 EHRR 38 it was held (or in Gnahoré, perhaps suggested) that the refusal of legal aid to a claimant who was required to have counsel impaired the "very essence" of his Article 6 right. However in Del Sol v France (2002) 35 EHRR 38, the Court, if I may respectfully say so, backtracked somewhat:
  103. "24. It is true that in Aerts, the Court found a violation of Article 6 § 1 after noting that by 'refusing the application [for legal aid] on the ground that the appeal did not at that time appear to be well-founded, the Legal Aid Board impaired the very essence of Mr Aerts's right to a tribunal'…
    25. However, the Court considers it important to have due regard to the quality of a legal aid scheme within a State.
    26. The scheme set up by the French legislature offers individuals substantial guarantees to protect them from arbitrariness. The Legal Aid Office of the Court of Cassation is presided over by a judge of that court and also includes its senior registrar, two members chosen by the Court of Cassation, two civil servants, two members of the Conseil d'Etat and Court of Cassation Bar and a member appointed by the general public (section 16 of the Law of 10 July 1991 cited above). Moreover, an appeal lies to the President of the Court of Cassation against refusals of legal aid (section 23 of the Law). In addition, the applicant was able to put forward her case both at first instance and on appeal.
    27. In the light of the foregoing, the Court holds that the Legal Aid Office's refusal to grant the applicant legal aid to appeal to the court of Cassation did not infringe the very essence of her right of access to a court."
  104. Ivison v United Kingdom (App. No. 39030/97) shows that the Strasbourg court is alert in this context to the impact of limited public resources, an aspect already referred to in X. The Court said:
  105. "Though the pursuit of the proceedings as a litigant in person by the applicant's mother would not have been an easy matter with or without other assistance, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice and the manner in which it functioned in this case has not been shown to be disproportionate or to impinge on the essence of the right of access to court (see the judgment Del Sol v. France…)"
  106. In Eckardt v Germany (2007) 54 EHRR SE7 the question was whether "the legal aid system offers individuals substantial guarantees to protect them from arbitrariness". Merits tests, variously upheld by the Strasbourg court, have been of different kinds: a circumstance which itself suggests that the root principle is that the legality of whatever system is chosen depends not so much on the stringency of its particular features but on whether it is reasoned and proportionate, thus avoiding the vice of arbitrariness. It is clear in particular that the Court has disavowed any suggestion that legal aid must be granted for proceedings where representation is compulsory. It is true, as Mr Hermer submits (skeleton argument paragraph 30), that in many cases the Court placed emphasis on the fact that the legal aid scheme was administered by the national courts themselves; and Collins J stated at paragraph 92:
  107. "The court was able to distinguish Aerts in Del Sol because of the involvement of judges of the court in considering the grant of legal aid and a right of appeal to a judicial body against a refusal. I see no reason to distinguish Aerts where, as here, there is no judicial input into the decision making process and no right of appeal. This applies only if there would be an infringement of the very essence of the right of access to a court or tribunal. That would be the position in the case if an individual who lacked capacity, could find no litigation friend willing to act and the OS could not himself act as litigation friend unless legal aid were granted."

    But I do not read the cases as showing that the court's involvement in determining legal aid applications is a definitive touchstone of the system's legality. Of course it is true that if the court is so involved, there is an obvious sense in which the applicant has access to it; but it is a rather empty sense if his engagement with the court stops at its refusal of legal aid. The system's legality depends, surely, on its quality: its application of a reasoned sensitivity to the particular case.

  108. I need not cite further authority. The Merits Regulations offer, in my judgment, a balanced – proportionate – approach to the grant of legal aid which cannot be condemned as arbitrary. The merits criteria are carefully specified and exceptions carefully spelt out: note in particular the specification of "borderline" and "unclear" cases in Regulation 5. There is an internal review procedure (see Reg. 69 of the Legal Aid (Procedure) Regulations 2012). As we have seen, judicial review is available and effectively deployed.
  109. In my judgment the Merits Regulations, in the form they took at the time of the hearing before Collins J, were lawful.
  110. GROUND 3: THE GUIDANCE

  111. I may deal with this last Ground shortly: Mr Hermer made it clear, as I have indicated, that he now seeks to condemn only two paragraphs of the Guidance, 8 and 39. I have set these out at paragraph 9 above.
  112. Mr Hermer's criticism of paragraph 8 is directed to the use of the term "highest priority cases". At paragraph 67 of his judgment Collins J said he was "far from persuaded that LASPO should be construed, despite what Ministers said it was intended to achieve, to limit grants of legal aid to the highest priority cases". But the Guidance does not commend any such limitation, as the balance of paragraph 8 makes clear. It is, moreover, a legitimate purpose of LASPO that the availability of civil legal services be confined to cases judged to be of the greatest need: see for example, R (Rights of Women) v Secretary of State for Justice [2015] EWHC 35 (Admin) per Lang J at paragraph 54.
  113. Paragraph 8 of the Guidance is not tainted by any legal error. As for paragraph 39, Collins J said this:
  114. "69… The guidance does not deal with Article 8 albeit the court in G made it clear that the procedural requirements inherent in Article 8 are essentially the same as those in Article 6(1). Effective access required to protect Article 8 rights is needed and that means that legal aid is required to ensure that there is such access and it is fair. Thus the approach set out in paragraph 39 would seem to be applicable where article 8 rights are concerned.
    70. If followed literally, paragraph 39 would seem to be intended to mean that Legal Help would not be available in circumstances where an applicant wants to know whether his case does merit legal assistance. That is the gap in the scheme to which I have referred. I think the guidance is too limiting and fails to recognise that without Legal Help there may well be a real risk that lack of further legal assistance will breach Convention or EU rights."
  115. Mr Hermer supports this reasoning. I think the judge's criticisms are misplaced. I agree with this passage in the appellants' skeleton argument:
  116. "65. The judge noted that paragraph 39 set out the approach to be adopted in respect of cases in which Article 6 was engaged. He observed that a similar approach 'would seem to be applicable' when Article 8 rights were concerned. He went on to conclude that the Amended Guidance was too limiting, and failed to recognise that without Legal Help there was a risk that certain applicants' Convention rights would be breached. However, the judge was wrong to find any error in this paragraph. To the extent that the Judge took issue with the reference to Article 6(1), it is entirely correct that 'where the source of the obligation to provide legal aid is Article 6(1)' the obligation will only arise where there is a determination of civil rights or obligations. It is not suggested that this applies in cases where the source of the right is Article 8 (which is dealt with separately at paragraphs 27-29 of the Amended Guidance)."
  117. Collins J also made observations about paragraphs 13, 22 and 44 of the Guidance, but did not, it seems to me, distinctly condemn any of them as legally insupportable; Mr Hermer certainly does not. I do not think it necessary to say any more about them.
  118. CONCLUSION

  119. For all the reasons I have given, I would allow this appeal and set aside the declarations made by Collins J.
  120. LORD JUSTICE BRIGGS:

  121. I agree with my Lord's analysis and conclusions on Grounds 2 and 3 of this appeal, to which there is nothing that I could usefully add.
  122. I also agree with my Lord's legal analysis of the issues arising under Ground 1, and with his conclusion that it is not possible to discern with sufficient clarity that the judge applied that analysis, so as to distinguish between a system which, although blighted by multiple instances of unfairness, is inherently lawful, and a system rendered unlawful by inherent unfairness. I agree therefore that this is an issue with which this court has to grapple afresh, on the voluminous, but largely uncontentious, evidence deployed by the parties. It is an issue fairly categorised as in some respects a matter of degree, about which a judgment has to be formed which may be described as inexact and even impressionistic, as my Lord says. The question is whether the evidence demonstrates an inherent or systematic failure, in which case the ECF system must be ruled unlawful, or whether, as both my Lords have concluded, it is merely a new system, being operated by persons on both sides on a learning curve, with very serious teething troubles, but falling short of inherent unfairness.
  123. On that question, I have the misfortune to have reached the opposite conclusion to that of both my Lords. In my judgment the defects in the procedures for applying for ECF in the system in place at the time of the hearing before Collins J were systematic and inherent, to the extent that rendered the scheme inherently unfair, so that I would have been disposed to dismiss this appeal under Ground 1B.
  124. Laws LJ has set out the essentials of the voluminous evidence relevant to this issue, and the parties' submissions upon it, in such admirable detail that I need not undertake any similar exercise myself. Furthermore, since I am dissenting only on a matter of judgment rather than legal principle, it is unnecessary for me to state my reasons in anything other than an abbreviated form. They are as follows.
  125. I would summarise the essential facts about the scheme for applying for ECF in this way:
  126. i) The ECF scheme uses an application form which is addressed to, and plainly designed only to be completed by, lawyers on the applicants' behalf. The form does not therefore even attempt to make the process accessible to an applicant without a lawyer, i.e. a would-be LiP.

    ii) Although there is limited guidance for LiPs on a website, and on a telephone helpline, it is demonstrably so inadequate for that purpose that only one LiP applicant has ever navigated the scheme successfully.

    iii) In sharp contrast with "in-scope" Legal Aid, the ECF scheme does not provide any form of funding for the substantial time and effort required of a lawyer to complete the necessary forms, nor does the prospect that an application will succeed (now 13%) provide anything approaching a sufficient economic incentive to make it a sensible business proposition for lawyers to undertake ECF applications. The success rate for "in-scope" applications of 89.9% provides, by contrast, a plainly sufficient incentive to qualified lawyers to make the applications, and they can in any event obtain Legal Help funding for the purpose of doing so.

    iv) There are therefore bound to be many potential applicants for ECF whose circumstances would qualify them to receive it, but who are disabled from doing so by the combined effect of a system for application designed to be operated by lawyers, and the lack of any sufficient economic business model to encourage lawyers to undertake the work required for that purpose, at least for persons who are not already their clients.

  127. It is in my view the combination of those two features, namely an application process which is inaccessible to most LiPs and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, which makes the ECF scheme inherently defective and therefore unfair. Neither of those features would necessarily do so on its own. They are however both features which are inherent to the chosen scheme for application for ECF, rather than a way of summarising a series of individual misfortunes incurred by those who have sought to use it. But just as a series of individual misfortunes will not be sufficient to prove that a scheme is unlawful, nor will the fact that a small number of applicants for ECF have successfully obtained it prove that the scheme is fair or lawful, if it is inherently defective.
  128. My Lords have been persuaded that the evidence of the features which I have summarised above fails to demonstrate systematic or inherent unfairness because:-
  129. a) The success rate has risen, as a result of the Gudanaviciene case from 1% to 13% of applicants.
    b) The evidence of the defects in the scheme came from only 20% of the law firms making applications for ECF, and was mainly based on experience prior to that change.
    c) Much of the criticisms in the evidence related to bad experience of the operation, rather than essential structure, of the scheme, all the participants in which may fairly be described as on a learning curve.
  130. Taking those points in reverse order, I accept the third of them. There is indeed a volume of evidence (some of it harrowing to read) about the way in which, in particular, LiP applicants for ECF have been treated. But this really misses and sometimes obscures the target in relation to the key features of the scheme which I consider make it inherently unfair. It may well be that improvements in the management of the handling of applications will address many of these concerns, but it is not easy to see how experience of making ECF applications which, even now, have only a 13% success rate, will provide an economic model which encourages solicitors to undertake the work, or reduce the amount of chargeable time required to a level which enables solicitors to accept a retainer for that purpose from would-be clients who, ex hypothesi, cannot afford to pay for it.
  131. I have not been persuaded that the voluminous evidence, obtained (we were told) from firms widely spread across the country, is significantly undermined by the fact that they represent only 20% of those who have made ECF applications. As Mr Hermer QC for the respondents submitted, that might have been a serious shortcoming if the essential thrust of that evidence had been seriously challenged, but it was not. It is no answer in my view to say that a number of professionally represented applicants have obtained ECF, presumably from solicitors prepared to act pro bono, at least in relation to the 87% of those applications which, even now, fail and lead to no retrospective payment for the cost of making them.
  132. Similarly, the criticism that much of the evidence related to a period prior to the handing down of judgment in the Gudanaviciene case might have been persuasive, if the increase in the success rate from 1% to 13% of applications made thereafter had been accompanied, or followed, by any significant increase in the number of applications, suggesting that solicitors were changing their minds about the lack of business sense of undertaking such work on behalf of new clients. The agreed statistics show, to the contrary, that the number of applications made has, if anything, declined since then. Furthermore, nothing in the Gudanaviciene case addressed the essential vitiating features of the scheme (as I see it), namely its inaccessibility to LiPs and the lack of any business economic model sufficient to encourage solicitors to participate in it.
  133. Addressing the 13% point directly, it remains the case, as found by the judge, that the numbers of those applying for ECF has consistently fallen very far below the estimates made prior to the launch of the scheme. Its unfairness (to my mind) lies precisely in the effect that the two inherent defects in it which I have identified discourage many would-be applicants, with deserving applicants among them, for applying for ECF at all. In short, all but a very few are unable to do so on their own, and most find it impossible to obtain the services of a qualified lawyer for the purpose of making the application. The fact that, of those who do surmount those inherently unfair obstacles, only 13% even then succeed in obtaining ECF is nothing to the point. It may well be that this will continue to be a typical success rate, and one which is not itself inherently unlawful in a scheme for the provision of exceptional Legal Aid for out of scope cases. But for as long as the success rate remains anything like as low as 13% the absence of a business incentive for solicitors to undertake the making of such applications for new clients seems to me to remain an inherent defect in the scheme, for as long as it continues to be designed (for example by the structure and content of the application form) to be accessed primarily by applicants with legal representation for the purpose, rather than by LiPs.
  134. I have asked myself whether the fact that a significant number of deserving individuals do obtain ECF, as the result of the undertaking of the work necessary for their applications by solicitors who must do so on an assumption that their work is likely to remain unpaid, and therefore pro bono, rescues the ECF scheme from inherent unlawfulness. I do not consider that it does. It is notorious that, despite their laudable and valiant endeavours, those lawyers who offer to work pro bono for deserving clients are insufficient to meet anything approaching the demand for their services, so that there must be (however difficult to quantify) a substantial class of deserving applicants who can neither obtain ECF on their own, nor obtain the legal assistance necessary for them to do so.
  135. LORD JUSTICE BURNETT:


     

  136. I agree that the appeal should be allowed for the reasons given by Laws LJ. There is nothing useful which I could add to the discussion of grounds 2 and 3 (at para 58 ff) but because we are differing from the judge on the principal issue, and also because Briggs LJ takes a different view, I will make some observations on ground 1.
  137. The judge's conclusion that the scheme was unlawful was based upon two essential findings. The first was that the application form for ECF was far too complex, certainly for a lay person and even for solicitors. The second was that the absence of payment to solicitors in the event that ECF was refused has resulted in an unwillingness on the part of those with the necessary legal aid contracts to make such applications. In short, they are unable to make the commitment in time necessary to assist applicants for ECF because of the precarious nature of the finances of legal aid solicitors (para 80, quoted above in para 21).
  138. In coming to the second of those conclusions the judge twice referred to the low success rate in the grant of non-inquest ECF.
  139. As Laws LJ has explained, the very low rate of grant of about 1% under the guidance condemned in the Gudanaviciene case increased following both the first instance and Court of Appeal judgments. The judge concluded that the evidence before him suggested a success rate of about 13% by March 2015. He considered that grant rate to be too low. The judge commented "that remains a very low figure" (para 29) and "it may be that there was hope that after R(G) the abysmally low rates of grant would be increased to a reasonable level. That has not happened." (para 41).
  140. There cannot be any objectively identifiable "reasonable level" of grant. The LAA is obliged by statute and subordinate legislation to grant ECF in any case which satisfies the statutory criteria; and otherwise refuse it. I do not consider, nor do I think it forms part of the respondent's case in these appeals, that we can proceed on an assumption that the grant rate of about 13% suggests that meritorious applications are being rejected on a systemic or wholesale basis. On the contrary, the assumption is that a large proportion of unmeritorious claims are being pursued although, as the judge noted, the number of applications and grants of ECF is much lower than anticipated in the consultation exercise which preceded the introduction of the scheme.
  141. It is undoubtedly the case that those operating a new scheme (whether the LAA or solicitors) take time to gauge how it is working. In many areas of legal and non-legal endeavour professionals undertake work with no certainty of being paid and must make a judgment about whether to undertake what may turn out to be unpaid work. In the context of applications for ECF solicitors could be expected to judge with increasing accuracy those likely to succeed and those that will not. Only time will tell. But the bald figure of 13% in itself tells us nothing about whether the scheme is unlawful. It provides a shallow foundation upon which to erect a conclusion that solicitors will not engage in the process.
  142. In my view, the evidence relied upon from solicitors and others in support of that conclusion is not convincing.
  143. The respondent relies upon a large number of statements from individual solicitors, from campaigners and those with an interest in legal aid provision and the Public Law Project. There are two general comments I would make about the nature of that evidence. First, many of the criticisms of the scheme being advanced by those who made statements relate to the scheme's operation before the judgment in the Gudanaviciene case at first instance, even though most of the statements post-date that judgment but pre-date the judgments in the Court of Appeal. That is of some significance, because the landscape radically changed as a result of the judgment of Collins J in that litigation. A good deal of the criticism, and thus the conclusions which the statement makers reach, undoubtedly relates to the earlier operation of the scheme. Secondly, whilst the evidence details the experience of seeking ECF in individual cases it also contain statements of intent for the future, coupled with wide-ranging criticisms of the scheme and other legal aid changes which are perhaps more familiar in consultation responses, than evidence properly so called. It presents powerful arguments against the policy which informed the scheme; arguments which did not deflect the Government from introducing the scheme. Such statements of intent and argument should be approached with some caution.
  144. A familiar phenomenon in consultation responses is to highlight the perceived dire consequences which may follow the implementation of the proposed policy. The history of resistance to changes in legal aid in recent years has involved predictions of calamity should the proposed changes be introduced. Many of those changes have been challenged in judicial review proceedings. Some have succeeded and some have failed. The executive's response to proceedings has included a reminder that it is for the decision maker to make judgements about the likely consequences of any proposed changes, by taking into account the predictions of providers, but not necessarily accepting them. That is not to question the integrity or sincerity of those concerned, but to recognise that subsequent events sometimes confound the predictions. The appellants do not accept that the wholesale withdrawal of professional support for those applying for ECF will occur. In my view they are right to question whether the evidence supports that conclusion, both at a general level, for the reasons I have touched on, and at the specific level. It does not prove that the scheme is inaccessible or unfair.
  145. The judge was unimpressed by the fact that a number of those who had suggested they would not provide professional help to make applications for ECF had gone on to do so, since making their statements. He speculated that they might have been paid for the work but also made what to my mind is a telling observation: "Naturally, solicitors advise any client on the likelihood of success in the application and should not advance an application which is obviously untenable." (para 41). This evidence, and the judge's comment with which I respectfully agree, illustrates why one should be cautious about statements suggesting complete disengagement in the future from the scheme. It also confirms that increasing familiarity with the scheme may make it easier for solicitors to decide which applications to make with a decent prospect of success.
  146. The judge was equally unimpressed by the evidence that 24 of the providers who provided evidence had submitted no applications for ECF, a further 20 had submitted only one and a further 13 only two. The appellants submit that these 57 have little or no experience of the scheme and thus add little or nothing to the evidence of those who have. In my view, that criticism is well made and underlines the more general point that a good deal of the evidence relied upon is in large part argument of the consultation response sort.
  147. Moreover, the statements relied upon are from providers who from the scheme's inception between them made 20% of applications for ECF and secured 44% of all grants. Those bare statistics conceal another striking feature, namely that 25% of all grants (and so more than half of those within this cohort) were secured by or with the help of the Public Law Project. They provided help to other solicitors and were in receipt of a grant to do so. 80% of applications were made by others who secured the remaining 56% of grants of ECF. A small number of applications (6%) was made by individuals. These figures demonstrate that providers within this second cohort were on average over three times more likely to fail than those who provided evidence in these proceedings. Yet they do not appear to have given up on the scheme. I say "on average" because the interpretation of statistics is notoriously hazardous, and likely to mislead, when dealing only with headline figures without the fine details of the underlying material. A proper understanding of these headline figures would require, at least, an analysis of the rates of application and grant to those within each cohort of providers both before and after the Gudanaviciene case (when the rate of grant increased rapidly from 1% to 8% and then further to about 13%); of the difficulty and nature of the applications; of the experience of the provider; whether the success rates within each cohort are broadly consistent or widely variable; and why applications were failing.
  148. The crude nature of the statistics makes it impossible, in my view, to draw firm conclusions from them. Similarly, the individual experiences recounted in the evidence do not support the general conclusions urged upon us by the respondent.
  149. There is little I would add to the discussion of the complexity of the application forms. The need for individuals to tackle the form without professional help is to some extent linked to the willingness of solicitors to provide assistance in completing the forms. We have reliable statistics of the total number of non-inquest applications for ECF made between April 2013 and March 2015. Of 2,258 applications, 131 were made directly by individuals – the 6% to which I have referred. I agree entirely with the judge that the application form is likely to be beyond the capacity of most individuals because it calls for information of a technical legal nature. But, like Laws LJ, I consider that the assistance provided by the LAA to individual applicants, which is flagged up on the website, supports the conclusion that on this aspect the scheme satisfies the relevant legal test. I would observe that the judge himself said in para 105, "As I indicated, what is put in the website can surely be put on the form." That was a reference back to para 54 where the judge had said:
  150. "I see no reason why a form for those who do not have providers should not in addition be prescribed. This need do no more than require the information set out in the website. The LAA has trained lawyers for whom it should be simple … to see whether it appears that there would be a need for legal assistance."
  151. The question for this court is whether the scheme is lawful applying the test, discussed fully by Laws LJ at para 15ff, and not whether we consider the policy underlying it to be correct. The judge articulated robust criticisms of the scheme, but in my judgment the evidence adduced by the claimant in the proceedings does not establish illegality.
  152. Copyright notice: Crown Copyright

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