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

Under Regulation 11 of Civil Legal Aid (General) Regulations 1989, the duty to report a financial change depends on whether objectively justified grounds existed for believing that it might affect the certificate. The test is not confined to the assisted person’s actual state of mind. A genuine belief based on an oversight does not displace the duty where the surrounding facts objectively supplied reason to believe that a material change had occurred. The Commission was entitled to apply that test when revoking funding, and permission to appeal was refused.

Mr Bale sought permission to appeal against Mr Justice Sullivan’s refusal of permission to apply for judicial review. The proposed judicial review concerned the Legal Services Commission Funding Review Committee’s decision of 31 October 2001, which dismissed his appeals against revocation of public funding certificates. The certificates had been revoked following investigation into previously undisclosed loans and payments affecting his financial circumstances.

Mr Justice Stanley Burnton had first refused permission on the papers. On renewal, Mr Justice Sullivan found no error of law or irrationality. The central issue before the Court of Appeal was whether Regulation 11 required an objectively justified reason to believe that a change might affect the certificate, or instead depended on Mr Bale’s genuine subjective belief.

Lord Justice Sedley refused permission to appeal.

1. Construction of Regulation 11. The provision imposed a duty to inform the Area Director of a change in financial circumstances where the person had reason to believe that the change might affect the terms or continuation of the certificate. The expression “reason to believe” did not introduce a subjective mental element analogous to mens rea.
2. Objective standard. A person may genuinely believe something despite having overlooked facts pointing the other way. However, a person has reason to believe it only where objective factors exist which justify the belief. The relevant inquiry therefore concerned the objective grounds available, whether or not the assisted person actually appreciated their significance.
3. Application. There were objective grounds in abundance for believing that a material change had occurred. The undisclosed sum was substantial, exceeded the figure on which Mr Bale had relied, and was accompanied by other loans and payments. The Committee had heard oral evidence as well as considering written submissions. It was fully entitled to conclude that Regulation 11 was engaged.
4. Judicial review and disposition. Mr Bale’s assertion that he held an honest belief could not establish an appealable error. The new ground was not viable, and the earlier grounds disclosed no basis for judicial review. Permission to appeal was refused. The formal order was: application refused.

• Court of Appeal (Civil Division): Permission to appeal against the refusal of judicial review permission was refused.
• High Court: Mr Justice Sullivan refused permission to apply for judicial review on renewal on 23 April 2002.
• High Court: Mr Justice Stanley Burnton had refused permission on the papers.