Berry Trade Ltd v Moussavi

A person facing committal who lacks sufficient means may reasonably refuse an opponent’s offer to fund legal representation and pursue public funding instead. When deciding whether to adjourn, the court must ask whether that person has had an effective opportunity to apply for public funding. In appropriate circumstances, that opportunity outweighs the convenience of the parties and efficient use of court resources.

The right to legal representation is not absolute. Once a full and proper opportunity to obtain representation has been provided, the interests of other parties, witnesses and the administration of justice may carry greater weight in any further adjournment application.

The first defendant faced an application for committal arising from alleged breaches of worldwide seizure and search orders. After his legal resources were exhausted and his initial application for public funding failed, Toulson J granted a short adjournment to permit further pursuit of funding.

The claimants then offered to fund his chosen solicitors and counsel at Legal Services Commission rates. The defendant declined because the proposed funding came from the parties seeking his committal. Toulson J considered that the arrangement would preserve professional independence and refused a further adjournment.

The defendant appealed with the judge’s leave. The central issue was whether he could reasonably refuse the claimants’ offer and seek public funding before the committal hearing proceeded.

1. Appeal allowed unanimously; order varied. Lady Justice Arden delivered the leading judgment. Lord Justice Mummery and Lord Justice Potter agreed. The committal application was adjourned to 20–23 May 2002.

2. A person facing committal who claims to lack sufficient means has the right to apply for public funding. The decision whether to grant that funding belongs to the Legal Services Commission. The court should respect the applicant’s right to pursue a proper opportunity to obtain it and should not compel the applicant to accept representation funded by the opposing party.

3. The claimants’ offer was generous and aimed to reproduce public funding without recourse against the defendant. It nevertheless had limitations, including uncertainty over incidental applications and continuing professional concerns. The defendant could reasonably refuse the offer and pursue public funding.

4. Toulson J addressed whether it would be professionally proper for the lawyers to act under the proposed arrangement. The correct question was whether the defendant had received an effective opportunity to apply for public funding. The judge had already found that the case required representation and that the funding problem was not a deliberate delaying tactic. In those circumstances, providing an effective opportunity carried greater weight than inconvenience to the parties or use of court resources. The judge therefore misdirected himself, and his exercise of discretion had to be set aside.

5. This conclusion accorded with articles 6(1) and 6(3)(c) of the European Convention on Human Rights. By analogy with Croissant v Germany, depriving a person of the opportunity to apply for public funding against that person’s wishes may conflict with a fair trial unless supported by relevant and sufficient justification.

6. The right to chosen legal representation is not absolute. The substituted adjournment provided a full and proper opportunity to seek representation. If representation remained unavailable thereafter, the court could give greater weight to the interests of the other parties and witnesses and could reasonably require the defendant to proceed in person.

1. Court of Appeal: The appeal was allowed unanimously. Toulson J’s order was varied so that the committal hearing was adjourned to 20–23 May 2002.

2. Queen’s Bench Division: Toulson J refused the first defendant’s application to adjourn the committal hearing after the claimants offered to fund his legal representation. The judge granted leave to appeal.