Martin v Legal Services Commission

Legal aid may be granted and reviewed in stages. Funding for an earlier stage creates no legitimate expectation that it will continue to trial. In deciding whether continued funding is reasonable, the decision-maker must assess prospects of success, costs and likely benefit, together with the importance and practical difficulty of the case. Costs already incurred are a material consideration, particularly where they form a substantial part of the financial stake. A passing reference to those costs is insufficient: the decision-maker must engage with their true significance under the applicable guidance and give legally adequate reasons. Article 6 does not require legal aid for every civil damages claim, especially where the claim has good prospects but the costs are disproportionate to the likely recovery.

The claimant sought judicial review of the Legal Services Commission Funding Review Committee’s decision to discharge his legal aid certificate in educational negligence proceedings shortly before the listed trial. The certificate had funded earlier stages, but no certificate had ever been granted for the trial itself. The Committee considered that the claim had good prospects on breach of duty but that likely damages were substantially below the applicable cost-benefit threshold, particularly after discontinuance against one defendant. The claimant alleged errors in applying the legal merits and reasonableness tests, failure to consider the effect of costs already incurred, breach of legitimate expectation, and breach of Article 6 ECHR. The central issue was whether the Committee had lawfully decided that further funding was unreasonable.

1. The decision was quashed. The claimant had no legitimate expectation that legal aid granted for earlier stages would extend to the trial. Staged extensions were contemplated by the statutory scheme and had expressly been granted subject to further review. The timing of the discharge did not itself make the decision unlawful: the trial date had been fixed when trial funding had not been obtained, and material changes had occurred in the prospects of recovery and the causation and quantum evidence.
2. The later guidance containing a cost-benefit matrix was capable of being used to assist the statutory assessment. Its later date did not prevent its application to this transitional case, provided the claimant knew the framework within which the statutory powers were exercised.
3. Article 6 did not require legal aid for every civil dispute. The court had to consider the nature and complexity of the proceedings, their importance, the claimant’s ability to present the case, prospects of success, and the relationship between costs and likely benefit. A refusal of funding could be lawful even where self-representation would be difficult, if the decision was fair, non-arbitrary and the costs were disproportionate to the likely recovery.
4. The Committee had, however, failed adequately to consider the costs already incurred. The earlier expenditure was material because it substantially exceeded the further costs required to reach trial and represented a significant part of the potential financial benefit. A private client might rationally incur further costs to protect the value already invested. The Committee’s brief reference to incurred costs did not explain their significance, identify how the relevant guidance had been applied, or show whether the case was regarded as “strong” or “not strong”.
5. Taking a material consideration into account requires engaging with its true import. The absence of adequate reasoning independently justified quashing the decision. The matter was to be reconsidered; the judgment did not determine that further funding had to be granted.

First-instance judicial review decision. The judgment itself does not state any prior appellate history.