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

Permission for judicial review requires an arguable public-law claim with a realistic prospect of success. A decision which has been overtaken by later events will generally provide no effective basis for review, save potentially in relation to costs. A later funding decision must be assessed on its own terms. The court must identify an arguable public-law ground directed to that decision, rather than revisit an earlier decision which is no longer operative.

The claimant sought permission to challenge the Legal Services Commission’s refusal, on 4 October 2005, to continue funding a negligence claim against a doctor. Following an agreement in February 2006, further funding was granted for advice and specified steps. Counsel later advised that the negligence claim had low prospects, and the claimant was unrepresented at the subsequent trial, at which judgment was entered for the doctor.

The claimant relied on alleged inequality of arms under Article 6 and contended that the February agreement provided for full Legal Aid. The central issue was whether any arguable public-law challenge remained to the October decision or to the later decision not to fund representation at trial.

1. Permission refused. The claim raised no arguable point which merited a full judicial review hearing.
2. The decision of 4 October 2005 was no longer an active decision. It had been overtaken by the subsequent reconsideration and grant of funding. It was therefore properly regarded as water under the bridge, apart possibly from its relevance to costs.
3. The court found no arguable public-law challenge to the later decision not to provide funding for the trial. The available material included counsel’s opinion of 2 May 2006, which stated in fairly strong terms that the negligence claim had low prospects of success. The claimant had also not, so far as she could recollect, applied for an adjournment of the trial.
4. The contention that the February 2006 arrangement promised full Legal Aid was rejected. The funding actually granted was directed to outstanding matters and advice on the merits, and the concept of full funding did not fit the way the proceedings had been dealt with.
5. The Article 6 complaint concerning the underlying negligence trial did not identify an arguable public-law ground for challenging the Commission’s funding decision. The court therefore refused permission and made no order as to costs.

The judgment records that judgment had previously been entered for the doctor in the underlying negligence proceedings before Cox J on 11 May 2006. An appeal from that decision was said to be pending in the Court of Appeal. No appeal from the present judicial review decision is stated.