C v Home Office & Anor

Article 6 may require publicly funded legal assistance in a civil claim where it is indispensable to effective access because representation is compulsory or the procedure or case is sufficiently complex. The essential question is whether the absence of assistance impairs the essence of the right.

Under the criminal injuries compensation scheme, the Authority must arrange an objectively necessary medical examination. Its reasonable expenses may include legal costs where the claimant’s lawyers act as the Authority’s proxies. Article 6 does not, however, require reimbursement of all representation costs where access remains practical and effective and the claimant can meet those costs from the eventual award.

A severely disabled child claimed criminal injuries compensation through her grandparents, who held parental responsibility. The Criminal Injuries Compensation Authority eventually awarded the statutory maximum of £500,000, after proceedings lasting more than six years. Her solicitors incurred substantial costs in obtaining expert evidence, advising her carers and pursuing the award.

Mitting J held in [2003] EWHC 1295 (QB) that the Authority had to bear the cost of material which the Scheme required it to obtain, including appropriate representative costs, but that other legal costs lay where they fell. He rejected the claimant’s Convention challenge.

The central issue on appeal was whether the exclusion of representation costs under paragraph 18 of the Criminal Injuries Compensation Scheme 1995 infringed articles 6, 8 or 14 of the Convention, or article 1 of the First Protocol.

1. Appeal dismissed unanimously. Sedley LJ delivered the judgment, with which Clarke LJ and Dame Elizabeth Butler-Sloss P agreed. The exclusion of representation costs from the Criminal Injuries Compensation Scheme 1995 did not infringe the claimant’s Convention rights.
2. Article 6 applied because a claim under the statutory Scheme involved the determination of a civil right. Legal assistance may be required where it is indispensable to effective access, because representation is compulsory or because of the complexity of the procedure or case. The relevant question is whether the absence of assistance impairs the essence of the right. The present claimant had effective access, an accepted entitlement and an assured substantial award from which deferred legal fees could be paid. Requiring payment from that award was potentially unfair, but it did not deny a fair hearing.
3. Paragraph 20 imposed a duty on the Authority to arrange a medical examination whenever one was objectively required to determine causation or quantum. The claims officer’s discretion was constrained by the material before the officer. The Authority could not transfer its function or its cost to the claimant under paragraph 18. Reasonable expenses could include legal costs where solicitors had effectively acted as the Authority’s proxies. Solicitors could not, however, commission reports unilaterally and assume reimbursement. The remaining dispute about individual reports was to be resolved according to that construction.
4. Article 14 did not assist because the suggested classes—children, legally disabled persons, persons with complex claims or combinations of those characteristics—did not establish the asserted discrimination. Article 8 had no relevant application. Financial planning could not be generalised into an article 8 right covering the legal costs in question.
5. An eventual award under a manifestly well-founded claim could be a possession for article 1 of the First Protocol. Requiring the claimant to meet the cost of securing it was not a deprivation by the state. Alternatively, limiting awards without an uplift for costs would pursue the public interest in controlling expenditure and operate under conditions prescribed by law.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 234, the court unanimously dismissed the appeal and upheld the conclusion that the Scheme was Convention-compliant, while confirming the Authority’s responsibility for objectively necessary examinations and associated reasonable expenses.
• High Court, Queen’s Bench Division: Mitting J held in [2003] EWHC 1295 (QB) that the Authority must defray the cost of material which the Scheme required it to obtain, including appropriate costs incurred by a representative in furnishing it. He held that other costs lay where they fell and rejected the Convention challenge.