Perotti v Collyer-Bristow (a firm) & Ors

A civil court has no power to grant a litigant a right to publicly funded legal representation comparable to that available in criminal proceedings. Article 6(1) may nevertheless require legal aid where appearing without a lawyer would deprive the litigant of effective access to the court.

The threshold is high. Representation is necessary only where the case cannot be presented in a way that enables the court confidently to grasp the material facts and principles and reach a just decision. It is insufficient that an advocate would present the case better or make the court’s task easier. Applications for permission to appeal ordinarily have a limited scope and can generally be determined fairly without representation.

The applicant sought court-provided legal representation for 23 applications arising from several sets of proceedings, principally litigation concerning the administration of his late uncle’s estate and subsequent professional negligence proceedings. Most of the outstanding matters were applications for permission to appeal from orders of the High Court.

The Court of Appeal considered the preliminary issue before determining the applications on their merits. The central questions were whether the court had power to provide representation in civil proceedings and whether representation was necessary to secure the applicant’s effective access to a fair hearing under article 6(1) of the Convention.

1. The applications for court-provided legal representation were refused unanimously. The Court of Appeal had no power in civil proceedings comparable to the power conferred for criminal proceedings by paragraph 2(1) of Schedule 3 to the Access to Justice Act 1999. Decisions about public funding for civil legal services were for the Legal Services Commission under the Community Legal Service scheme. A court could neither direct the Commission to provide funding nor direct a solicitor to apply for it.

2. Article 6(1) did not expressly confer a right to free representation in civil proceedings. It nevertheless guaranteed practical and effective access to a court. Legal aid might therefore be required where its absence made assertion of a civil claim practically impossible or produced obvious unfairness. The applicant had to cross a relatively high threshold.

3. The relevant inquiry was not whether professional advocacy would improve the presentation or make the court’s task easier. Representation was necessary only if the litigant’s presentation left the court unable confidently to grasp the material facts and principles and therefore unable to reach a just decision. Courts routinely had to deal with difficult or poorly prepared cases.

4. Ordinary permission applications required only a real, rather than fanciful, prospect of success. The court had to identify the proposed grounds and decide whether they were properly arguable. For a second appeal, an important point of principle or practice, or another compelling reason, was required. The limited scope of those inquiries reduced the need for advocacy.

5. The applicant had demonstrated that he could state his proposed points clearly. The court could determine the permission applications justly without legal representation, so he would not be denied effective access. Permission would not be granted merely to trigger access to pro bono representation. The merits were reserved for a later hearing, and the existing stay in application 2003/1662 was extended pending determination or further order.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 1521, unanimously refused the preliminary applications for court-provided legal representation. It reserved the underlying permission applications for later determination and extended the existing stay in application 2003/1662.

2. High Court and subordinate proceedings: The 23 matters arose from numerous orders made in the Chancery Division and other civil proceedings. The applicant sought permission to appeal or related relief, but the merits of those applications were not decided in this judgment.