Hunt & Anor v Acres & Anor

Article 6.1 requires legal assistance in civil litigation only in exceptional circumstances, where its absence would make pursuing the claim practically impossible. The Human Rights Act could not impose duties retrospectively for events occurring before it came into force, subject to the limited exception in section 22(4). Where the statutory scheme left the lower court no discretion but to make the challenged order, permission to appeal had no real prospect of success. A human-rights argument could not reopen a compromise which had already been fully litigated.

The applicants, builders, claimed payment from the respondents for building work. The dispute was compromised by a Tomlin order, which stayed the action, permitted the applicants to take money in court, and provided that each party would bear its own costs.

The Legal Services Commission later applied under section 16(6) of the Legal Aid Act 1988 to be substituted as claimant and enforce its statutory charge over the money. Judge Fletcher granted the application, and an order dated 2 January 2001 required the £10,500 to be paid to the Commission. The applicants sought permission to appeal, relying principally on Article 6.1 and the withdrawal of legal aid before the compromise.

1. Application refused. The applicants had no real prospect of success on an appeal against the order directing payment of the money in court to the Legal Services Commission.
2. Article 6.1 could, in principle, require legal assistance in civil proceedings, but the obligation was narrow. It arose only in exceptional circumstances where the absence of legal assistance would make pursuing the claim practically impossible. Those circumstances did not arise on the facts.
3. The Human Rights Act was not in force when the legal aid was withdrawn and the compromise was made. Neither the court nor the Legal Services Commission could therefore be subjected retrospectively to duties under that Act. The limited exception in section 22(4) did not extend to this case.
4. The applicants had not responded to the invitation to show cause why their legal aid certificate should not be withdrawn. They had also unsuccessfully challenged the compromise order. The Article 6 argument was therefore, in substance, an attempt to reopen a compromise which had already been fully litigated.
5. Judge Fletcher had no option but to make the order required by the statutory scheme, including section 16(6) of the Legal Aid Act 1988 and Regulations 85 and 87. Permission to appeal was accordingly refused.

• Lower court: Judge Fletcher refused to set aside the Tomlin order and, on 19 December 2000, granted the Legal Services Commission’s application for substitution under section 16(6) of the Legal Aid Act 1988. The resulting order was made on 2 January 2001.
• Court of Appeal: Earlier applications for permission to appeal concerning the compromise were refused. In December 2001 Lord Justice Rix adjourned the present matter for further consideration of the Article 6 point and refused permission on the other grounds. Lord Justice Kennedy refused the present application.