DEG-Deutsche Investitions und Entwicklungsgesellschaft MBH v Koshy & Ors

The statutory legal-aid appeal scheme must be read as a coherent whole. An appeal cannot extend to matters for which the regulations provide no right of appeal. Such matters must be challenged by judicial review within the applicable time limit.

An assessment may be amended where the assessment officer recognises an error or mistake, or where relevant new information emerges, and correction would be just and equitable. The provision cannot be used automatically to reopen an old assessment or circumvent judicial-review time limits. The officer must, however, consider whether the obvious should be addressed.

DEG had brought proceedings against Mr Koshy and related companies. Mr Koshy's emergency legal-aid certificate was revoked and his application for substantive legal aid was refused. The legal-aid authorities later considered an appeal limited principally to costs and capital issues, while declining to reopen the assessment of his disposable income.

Mr Koshy sought judicial review of those later decisions. Turner J refused his renewed application for permission. The Court of Appeal considered whether there was an arguable basis for an appeal, particularly concerning the scope of the appeal regulations and the power to amend an assessment.

1. Application refused. Permission to appeal from Turner J's order was refused. The respondent's costs of the permission application were payable by the applicant, subject to detailed assessment.
2. The General Regulations created rights of appeal for specified matters but excluded, among other matters, an assessment by an assessment officer and the refusal of an emergency certificate. Regulation 37, which described an appeal as a reconsideration of the application, could not enlarge the matters subject to appeal. Regulation 39 had to be read within that coherent statutory scheme and did not permit an area committee to reopen issues for which no appeal existed.
3. The original disposable-income assessment therefore could not be challenged indirectly through the later appeal process. The appropriate route for challenging a non-appealable decision was judicial review, pursued within the proper time limit.
4. Regulation 14 of the Assessment Regulations applied where an assessment officer accepted that there had been an error or mistake and considered that correction would be just and equitable, or where relevant new information had emerged. The officer had a duty in appropriate circumstances to consider whether the obvious required correction and could not simply shut his mind to an apparent error.
5. Nevertheless, no single established error had been identified. The Commission maintained that several aspects of the income assessment remained uncertain and that it was not just and equitable to reopen only the alleged tax-on-benefits issue. Its refusal to reopen the assessment was neither legally erroneous nor wholly unreasonable.

• Court of Appeal (Civil Division): permission to appeal from Turner J's refusal of renewed permission for judicial review was refused on 3 April 2001.
• High Court, Administrative Court: Turner J refused the renewed application for permission on 2 April 2001.
• High Court: Silber J had previously refused the judicial-review application on the papers; Jackson J had granted permission on a limited ground in the earlier proceedings.