Munday, R (on the application of) v Legal Services Commission

Permission to appeal should be refused where the proposed appeal has no sensible prospect of success. A complaint that solicitors wrongly believed they were subject to restrictions under a legal aid certificate is insufficient unless the applicant can show that, without the alleged error, there was a reasonable prospect of persuading leading counsel to alter an unfavourable opinion and thereby obtaining legal aid. Where a subsequent opportunity to challenge that opinion was provided and failed, a successful judicial review claim, and any associated damages claim, may be regarded as having no realistic prospect.

The applicant sought permission to appeal from an order of Crane J dated 1 December 2000, refusing permission to apply for judicial review. The proposed judicial review concerned the Legal Services Commission’s refusal on 3 March 2000 to grant legal aid for proceedings against the applicant’s former solicitors.

The applicant argued that those solicitors had wrongly treated themselves as restricted from undertaking work under his legal aid certificates after receiving an unfavourable opinion from leading counsel. The central issue was whether that alleged error could realistically have affected the prospects of obtaining legal aid or succeeding in the proposed claim.

1. Application refused. Simon Brown LJ considered the application on the documents because the applicant was unable to attend and neither party was represented. The Court of Appeal refused permission to appeal.
2. The applicant relied on a letter from his former solicitors stating that they could not discuss points raised in his correspondence because they did not have legal aid. The later correspondence showed that the solicitors were not operating under a restriction in December 1996. That fact alone did not advance the applicant’s case.
3. Even assuming that the solicitors had wrongly regarded themselves as restricted, the applicant needed to show a reasonable prospect that, without that mistake, he could have persuaded leading counsel to change his unfavourable opinion. That opinion concerned the proposed action against the former solicitors and the consequent extension of legal aid. The applicant could not show such a prospect.
4. When the show cause procedure was suspended in January 1997, the applicant had a clear opportunity to consult leading counsel and seek a change of view. He failed to do so. The Court therefore concluded that there was no sensible prospect of a successful appeal, and that a successful judicial review claim was inconceivable, quite apart from a damages claim.
5. The formal order was: application for permission to appeal refused.

• Court of Appeal (Civil Division): On 4 December 2001, Simon Brown LJ refused the application for permission to appeal: [2001] EWCA Civ 1871.
• High Court of Justice, Queen’s Bench Division, Administrative Court: On 1 December 2000, Crane J refused permission to apply for judicial review of the Legal Services Commission’s refusal to grant legal aid.