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

Article 6 of the European Convention on Human Rights creates no general right to publicly funded representation in civil or tribunal proceedings. Funding may become necessary in exceptional cases where the absence of representation would practically deny access to justice.

When reviewing a refusal of exceptional funding, the court examines whether the decision-maker applied the governing statutory and policy criteria lawfully. The court does not substitute its own assessment for that of the funding authority. A judge is not required to refer expressly to every piece of evidence if adequate reasons demonstrate that the relevant issues were considered.

The applicant sought exceptional funding under section 6(8)(b) of the Access to Justice Act 1999 for professional representation at a lengthy Employment Tribunal hearing concerning his employment and related claims.

The Legal Services Commission refused funding in letters dated 24 November and 13 December 2000. Ouseley J refused permission for judicial review on the papers. Scott Baker J refused the renewed application and an adjournment on 15 January 2001, finding no arguable case and no breach of Article 6. The applicant sought permission to appeal, challenging the guidance, the Commission’s assessment, the judge’s treatment of the evidence and alleged bias.

The central issues were whether the funding criteria were compatible with Article 6 and whether the Commission had acted unlawfully in applying them.

1. Application dismissed. The refusal of permission and the underlying judicial review decision were upheld. There was no prospect of establishing that the Commission’s decision was unlawful.
2. Article 6 does not establish a general entitlement to funded representation in civil proceedings or before tribunals. Airey v Ireland (1979) 2 EHRR 305 concerned exceptional circumstances in which the absence of representation would practically deny access to justice. It did not require funding in every complex or important case.
3. The Lord Chancellor’s guidance under section 6(8)(b) of the Access to Justice Act 1999 was intended to operate consistently with Article 6 and was compatible with it. The Commission was entitled to apply its stringent criteria, including the requirements relating to financial eligibility, the General Funding Code, significant wider public interest or overwhelming importance, and the necessity of representation.
4. The Commission had not erred in law by concluding that the applicant’s employment dispute did not meet the guidance’s definition of overwhelming importance or involve a significant wider public interest. It was also entitled to consider whether the applicant could conduct the proceedings himself and to attach some weight to the withdrawal of union support.
5. The reviewing judge was not required to refer to every supporting letter. His task was to determine whether the Commission’s decision was amenable to judicial review, not to decide afresh whether exceptional funding should be granted.
6. Bombo Beheer B V v The Netherlands (1994) 18 EHRR 213 did not support the applicant’s argument. It concerned unequal treatment in the reception of evidence and did not establish a general Article 6 right to legal aid.

The application was dismissed with no order for costs.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal and upheld the refusal of judicial review.
• Administrative Court: Scott Baker J refused the renewed application for permission for judicial review and an adjournment on 15 January 2001. Ouseley J had previously refused permission on the papers.