Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin) (Collins J)

Practice and Procedure – Other

In this judicial review, Collins J scrutinised the approach adopted by the Director of Legal Aid Casework to applications for Exceptional Case Funding (in which only 1% of non-inquest applications have succeeded since 1 April 2013). Collins J held that the guidance issued by the Lord Chancellor on ECF set too high a threshold when stating that the test was whether the withholding of legal aid would make assertion of the claim practically impossible or lead to obvious unfairness. Importantly, he considered matters both by reference to Article 6 ECHR and by reference to the procedural requirements in Article 8 ECHR which may apply even where Article 6 ECHR is not strictly in play:

“28. It seems to me to be clear that the key considerations are that there must be effective access to a court and that there must be overall fairness in order that the requirements of Article 6 are met. One aspect of effective access must be the ability of a party to present all necessary evidence to make his case and to understand and be able to engage with the process. So much is apparent from AK & L v Croatia [n.b. it appears that this is actually X v Croatia Application No 11223/04 concerning the procedural aspects of Article 8 ECHR]. It must be borne in mind that both before a tribunal and a court the process is adversarial. Thus the tribunal cannot obtain evidence where there are gaps in what an applicant has been able to produce. Equally, it may have difficulties if there is defective written material put before it in appreciating whether there is any substance to a claim or even if any particular human rights claim is properly raised. I think the words 'practically impossible' do set the standard at too high a level, but, as Chadwick LJ indicated [in Perotti v Collyer-Bristow [2003] EWCA Civ 1521], the threshold is relatively high. No doubt it would generally be better if an appellant were represented, but that is not the test. Nevertheless, the Director should not be too ready to assume that the tribunal's experience in having to deal with litigants in person and, where, as will often be the case, the party's knowledge of English is non-existent or poor, the provision of an interpreter will enable justice to be done.”

Whilst these dicta are from the immigration context, they have a wider significance including in the Court of Protection.