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

A funding review committee must address the central issue advanced by an applicant and explain how it reached its conclusion on that issue. It is insufficient to rely on general concerns about prospects, evidence or delay while leaving unaddressed the suggested consequences of earlier professional negligence. On judicial review, the court should not itself assess the underlying funding merits where that assessment properly belongs to the committee. The appropriate remedy is to quash the decision and remit it for reconsideration.

The claimant challenged the Funding Review Committee’s decision dismissing her appeal against the discharge of legal aid. The proposed underlying claim concerned alleged negligence by solicitors who had advised and represented her in a professional negligence claim against accountants. The committee relied on counsel’s provisional assessment of the prospects, delay, and the absence of witness statements or proofs of evidence.

The claimant contended that the committee had failed to consider whether the solicitors’ alleged negligence had caused inadequate expert evidence and advice, and whether competent evidence and advice would have led to continuation of funding. The central issue was whether the committee had lawfully addressed that causation and counterfactual question.

1. Decision quashed and remitted. The committee’s decision was quashed and the matter was remitted to another committee for reconsideration. The court invited the committee to meet the claimant’s representatives and to identify the documents necessary for resolving the issues.
2. Failure to address the central issue. The committee was entitled to assess the prospects of the claim against the former solicitors and to consider the evidential difficulties, the passage of time and the claimant’s consistency. However, if it regarded the prospects as speculative, it had to address whether the solicitors had acted negligently in obtaining and transmitting inadequate accountancy evidence and advice, and what the consequences would have been had they acted competently.
3. The decision letter and the committee chairman’s witness statement contained no analysis of that issue. The defendant accepted that omission but argued that the committee must have resolved it against the claimant. On an important issue, an unexplained conclusion was inadequate.
4. The court declined to determine whether competent representation would have resulted in continuation of legal aid. That assessment was properly for the committee on reconsideration. The court also declined to give definitive views on whether a further expert report was necessary.
5. Several other grounds were rejected or left unresolved, including alleged misunderstanding of the lost-chance assessment and complaints concerning the wording of the decision letter. Costs were ordered against the defendant, payable in full until one month after service of the chairman’s witness statement and thereafter at 80 per cent, together with a public funding assessment.

On 13 August 2002, Crane J granted permission to argue several grounds of judicial review. The Administrative Court thereafter heard the substantive claim and quashed the Funding Review Committee’s decision.