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

Public funding decisions for civil litigation may take account of both prospects of success and cost-benefit considerations. Judicial review remains supervisory: the court asks whether the funding body acted unfairly, applied the wrong legal test, assessed prospects irrationally, or failed to give adequate reasons. It does not substitute its own assessment of competing expert evidence. A decision is not irrational merely because some evidence favours the claim or future research might improve its prospects. The right of access to a court under Article 6 is not absolute, and legal-aid conditions may reflect prospects of success. Where funding has been withdrawn after a proper, sustainable and properly reasoned assessment, the decision discloses no arguable Article 6 violation and is not amenable to judicial review.

Ten children with autistic spectrum disorders and inflammatory bowel disease were among 1,600 claimants in group litigation alleging that MMR vaccines caused their conditions. The Legal Services Commission discharged generic and lead claimant certificates after expert evidence was exchanged. The Funding Review Committee upheld that decision, finding no reasonable prospects for the autism claims and insufficient cost benefit for claims based only on inflammatory bowel disease.

Individual certificates were then discharged and the Committee dismissed appeals. Leveson J refused permission for judicial review and subsequently dismissed the applications of the other nine children. The applicants sought permission to appeal, alleging failures to consider evidence, irrationality, disproportionality, application of an excessive standard of proof, and breaches of Articles 6, 8 and 14 of the European Convention on Human Rights. The central issue was whether the Funding Review Committee’s decisions were amenable to judicial review.

Outcome. The applications for permission to appeal were dismissed.

1. Scope of review. The court endorsed the formulation that judicial review of a funding decision requires a showing of unfairness, application of an incorrect legal test, irrational assessment of prospects of success, irrational factual assessment, or inadequate reasoning. The reviewing court must remain supervisory. It does not make a primary assessment of the comparative strength of extensive expert evidence.
2. Funding decisions. Decisions about public funding for civil litigation may properly take account of prospects of success and cost-benefit considerations. It was open to the Funding Review Committee to conclude that the evidence did not justify continued funding. It was also rational to decline funding where success depended on speculative future research. The existence of some favourable expert evidence did not make the contrary assessment irrational.
3. Group litigation. The Committee was entitled to take the earlier decisions concerning generic and lead certificates as its starting point. It nevertheless had to consider whether new material undermined those conclusions or made them inapplicable to the individual applicants. The material relied upon did not do so.
4. Expert evidence and remedies. On a permission application, the judge was not required to read a mass of expert evidence in full where the applicant had not established structured grounds showing that the Committee’s decision was untenable. If judicial review had succeeded, the feasible remedy would have been to quash the decision and remit it to the Committee for reconsideration, rather than for the court to decide the merits itself.
5. Convention claims. The right of access to a court under Article 6 is not absolute. As recognised in Steel and Morris v United Kingdom 68416/01 EHRR, legal-aid conditions may take account of prospects of success. The court assumed without deciding that refusal or withdrawal of legal aid might in some circumstances breach Article 6, but found no arguable breach here because the decision was proper, sustainable and properly reasoned. The Article 8 claim disclosed no arguable interference by a public authority, and Article 14 did not assist because the other funded claims were materially different.

• Court of Appeal (Civil Division). The court dismissed the applications for permission to appeal in [2006] EWCA Civ 155.
• Administrative Court of the High Court. Leveson J refused permission to bring judicial review proceedings by an order dated 14 October 2005 and dismissed the other applications by a supplementary order dated 13 February 2006.