Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

legal-aidR (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment

The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.

This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful. Continue reading

State should pay for representation and witnesses in private child disputes

Money purse - WalletQ v Q ; Re B (a child) ; Re C (a child) [2014] EWFC 31 – 6 August 2014 –  read judgment

Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”.   As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:

The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.

All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.

Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service.   Continue reading

The Supreme Court on “prohibitively expensive” costs: Aarhus again

R (Edwards & Pallikaropoulos) v. Environment Agency et al, Supreme Court, 11 December 2013 read judgment

This is the last gasp in the saga on whether Mrs Pallikaropoulos should bear £25,000 of the costs of her unsuccessful 2008 appeal to the House of Lords. And the answer, after intervening trips to the Supreme Court in 2010 and to the CJEU in 2013, is a finding by the Supreme Court that she should bear those costs.

The judgment by Lord Carnwath (for the Court) is a helpful application of the somewhat opaque reasoning of the European Court on how to decide whether an environmental case is “prohibitively expensive” per Article 9(4) of the Aarhus Convention, and thus whether the court should protect the claimant against such liabilities. The judgment also considers the guidance given by A-G Kokott more recently in infraction proceedings against the UK for breaches of that provision: see my post.

But note that the dispute has been largely overtaken by recent rule changes, and so we should start with these before looking at the judgment.

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Aarhus for real beginners

aarhus

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

  • Access to environmental information
  • public participation in environmental decision-making, and
  • access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

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The CJEU on “prohibitively expensive” and the new protective costs order regime

R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,

and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45

Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.

The first development is a decision by the CJEU on the meaning of those words.

The second is a new set of rules providing for protective costs orders in environmental judicial review claims. Continue reading

Have human rights hijacked the language of morals? – and other questions: Laws

Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here 

This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.

Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.

Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.

It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake. Continue reading

The BAILII lecture: No Judgment, No Justice

For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.

Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.

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