Adshead & Ors, R (on the application of) v Legal Services Commission

Legal assistance to pursue a petition to the House of Lords may properly be refused where the proposed appeal has no reasonable prospect of success and raises no point of law or principle warranting a further appeal. Human-rights complaints do not alter that conclusion where the underlying case is hopeless. The doctrine of equality of arms is not engaged merely because legal assistance is refused for judicial review of that funding decision. Finality in litigation prevents a party from reopening concluded issues by challenging the opponent’s legal aid.

The applicant sought judicial review of the Legal Services Commission’s refusal to provide legal assistance for a proposed petition to the House of Lords following the dismissal of her appeal against a suspended committal order. She alleged irrationality, procedural unfairness, lack of disclosure, delay, bias and breaches of Convention rights.

Sir Oliver Popplewell refused permission. The applicant appealed to the Court of Appeal, contending that the refusal of legal assistance was unlawful and that the underlying litigation and legal aid certificates remained open to challenge.

1. Permission refused. The application was misconceived. No appeal to the House of Lords could have succeeded because the proposed petition sought to reopen matters already determined and disclosed no important point of law or principle.
2. The court was entitled to conclude that the applicant’s case was hopeless. The earlier building dispute had been finally determined in favour of the Cummins, and the consequential orders for costs had been upheld on appeal. The applicant could not avoid those costs by seeking to relitigate whether the Cummins had properly received legal aid.
3. The applicant’s complaints concerning impartiality and equality of arms did not assist. The funding decision was made by solicitors in private practice who were not members of the Legal Services Commission, and the applicant had appeared before the Board without an opposing party being represented. In any event, such complaints could not justify funding an appeal which had no prospect of success.
4. The complaints concerning missing legal aid certificates, legitimate expectation, rationality, access to justice and alleged Convention breaches likewise could not succeed. The relevant matters had already been considered, and there was no realistic basis for a further appeal.
5. Under Civil Legal Aid (General) Regulations 1989, regulation 91(1)(b), the Legal Aid Board could enforce the costs orders by stepping into the position of the legally aided party. The court treated the resulting costs liability as established and refused permission to appeal.

• Court of Appeal (Civil Division): Lord Justice Aldous refused permission to appeal against the refusal by Sir Oliver Popplewell of permission to apply for judicial review.
• Queen’s Bench Division: Sir Oliver Popplewell refused permission to apply for judicial review of the Legal Services Commission’s refusal of legal assistance.