Will Article 6 come to the rescue after the legal aid reforms? – Guy Mansfield QC

26 June 2013 by

Henry Cavill in Man of Steel, Zack Snyder's Superman movieTan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow

The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time.  The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR). 

The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.

Money lenders

T contended that they had, by written agreement, lent L £30,000 with interest at a rate of three per cent per calendar month, repayable after one year. L disputed T’s claim, arguing that they had been taken advantage of by unlicensed money lenders, that the sum had been loaned in order to purchase a takeaway premises, and that the agreement was therefore in contravention of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983.

L’s contention that they could not speak English and required an interpreter was disputed. L had on a previous occasion successfully applied to vacate the trial date on the day of the trial itself. The instant application, also made on the day of the trial, was sought as the Legal Aid Agency had limited funding to the exchange of documents and the costs of obtaining counsel’s opinion, so that there was no funding for representation at the trial. The issue was whether L’s position, that they would be unrepresented if the trial was not vacated, meant that there would be a risk to the fair trial process if the matter proceeded.

Risk to the fair trial process

The judge’s reasoning appears to have been as follows. Article 6 does not necessarily envisage a right to representation, but does require consideration of whether there would be a fair hearing in the absence of representation. The entire checklist under CPR r.3.9 of circumstances to be considered on an application for relief from sanctions is not always relevant in every case and requires a fact-specific approach, Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd (t/a Brands Plaza) [2012] EWCA Civ 224, considered.  There has to be real and effective access to the court for both parties, and they have to be able to present their cases as best they can. That might involve access to legal aid. There has to be equality of arms.

The court here had to proceed on the basis that L could not speak English. The circumstances were such that the matter might be factually complex and might require consideration of legislation. It was sufficiently complex not to deprive L of the legal aid representation that they were seemingly about to become entitled to.  L could not properly conduct a trial on their own, even with an interpreter, in a way that allowed for a fair hearing. The court reluctantly vacated the trial date.

Equality of arms – the general approach

Looking forward, we should remind ourselves how the courts have approached the issue of equality of arms and the need for representation in certain circumstances in non-criminal matters.  In Airey v Ireland (1979) 2 EHRR 305 (para 24) Strasbourg made it clear that the different provisions in respect of non-criminal matters do not mean that a civil or family litigant had no right to legal aid at all:

The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. It must therefore be ascertained whether Mrs. Airey’s appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.

The ECtHR leaves the state a free choice of the means to be used towards an end.  The institution of a legal aid scheme constitutes one of those means but there are others, such as the availability of representation under a contingent or conditional fee agreement.  Nonetheless in (R) Jarrett v Legal Services Commission [2002] 1 WLR 2583, the applicant sought legal aid to defend director’s disqualification proceedings. Her application for judicial review succeeded on the basis that the Guidelines issued by the Lord Chancellor to the LSC did not provide for the grant of legal aid if withholding it would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings.

In Perotti v Collyer Bristow [2004] 2 All ER 189, the Court of Appeal considered whether representation was needed under Article 6 to ensure that the claimant had a fair hearing of his application for permission to appeal.  The Court held that the obligation to provide legal aid arose if the fact of presenting his own case could be said to prevent the litigant from having effective access to justice to the court.  The test is whether the court is put in a position where it really cannot do justice because it has no confidence in its ability to grasp the facts and principles of the particular matter.

The court went to hold that this position had not arisen on this application for permission: on an application for permission for a first appeal the threshold for obtaining permission was relatively low and in the case of an application for permission to bring a second appeal the court is usually well able to decide if an important point of principle or practice is involved.

More recently and adopting a similar approach, in HH (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 504, the Court of Appeal, held  that in the instant case legal representation was not indispensable. H’s case did not disclose complicated points of law, only whether H’s account of events in Iran was to be believed, and the state was not compelled to provide a lawyer, Airey distinguished. It was not possible that the outcome of H’s appeal before the immigration judge would have been any different even if legal representation had been accorded to him. The duty of any court on an application to adjourn for legal representation to be obtained was to look overall at the matter to see if any injustice would be caused by a refusal. No injustice had been caused by the absence of representation.

Limited resources

This is all consistent with the ECtHR’s approach which has accepted that given the limited resources available, a system of legal aid can only operate efficiently by establishing a machinery to choose which cases qualify for support.  Where civil legal aid is available, cases may be chosen for support on the basis of merit and subject to financial contribution, X v UK (1980) 21 DR 95, 101.  So, for example, generally defamation proceedings as a class do not qualify at all for legal aid, see Munro v UK (1987) 52 DR 158.  But even here, there may be an exception if the case is complex and there is a massive imbalance – Steel and Morris v UK (2005) 41 EHRR 22, where the violation was established on the basis of inequality of arms rather than access to the court.

Effective access?

So, in civil matters the Government is under an obligation to provide effective access to the courts.  This extends in appropriate circumstances to the provision of legal aid.  But that is not an absolute right.  Important considerations are the importance accorded to right in question (defamation is accorded less value than family status/divorce etc.), the complexity of the proceedings and the ability of the court to compensate for the disadvantages faced by a litigant in person.

The changes introduced by Legal Aid, Sentencing and Punishment of Offenders Act 2012 may well justify an Airey type challenge.  That will be on the basis that such matters are generally deserving of being brought to court, are complex and expensive to litigate, and will not be sufficiently supported by the proposed CFA or DBA regime.  The decision on Tan v Law is but a foretaste of what is to come.

Guy Mansfield QC is a barrister at 1 Crown Office Row

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