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

Where a legally eligible party seeks public funding in proceedings, funding may be refused if another person can reasonably be expected to bring or fund the case. That criterion is distinct from the applicant’s own financial eligibility, but it must be applied in light of the substance of the case and the interests advanced. Specific guidance for Court of Protection proceedings does not displace the Funding Code. Although separate representation may be necessary where an applicant wishes to advance a new and significant argument which would not otherwise be advanced, a party cannot obtain funding merely by being added to proceedings as a financially eligible representative of a family member whose interests and arguments are identical.

The claimant, a financially eligible student, was joined as a respondent in Court of Protection proceedings concerning his severely disabled brother. He and his mother sought the same outcome and advanced the same arguments. The mother was ineligible for public funding because of the equity in the family home, while the claimant had no significant means.

The Legal Services Commission refused funding under the Funding Code and its Court of Protection guidance, concluding that the mother could reasonably be expected to bring or fund the case and that no new significant argument would otherwise be advanced. The claimant applied for permission to seek judicial review of that decision.

1. Permission refused. The Legal Services Commission’s decision was not even arguably wrong, and the application for permission to apply for judicial review was dismissed.
2. Section 8 of the Access to Justice Act 1999 authorises the Funding Code. Under paragraph 5.4.2, funding may be refused where another person can reasonably be expected to bring or fund the case. In context, “bring” includes defending, resisting or responding to proceedings.
3. The claimant’s own financial eligibility did not answer the separate question whether another person could reasonably be expected to fund the case. The mother’s financial ineligibility was attributable to substantial equity in the family home, materially above the applicable threshold. The court held that the policy underlying the financial eligibility rules supported the conclusion that she could reasonably be expected to fund the case, at least until her available funds were exhausted.
4. The Court of Protection guidance, including paragraphs 28.3.8 and 28.3.9, had to be read with the Funding Code. It did not supersede or replace the Code. Relevant considerations included the applicant’s connection with the protected person, the proposed submissions, the representation of other parties, directions given by the court, and whether a new and significant argument would otherwise be advanced.
5. The claimant had a sincere and legitimate interest and could properly remain a party. He could also be a valuable participant at the hearing. Those matters did not overcome the fact that his mother had at least as substantial an interest, possessed available capital, and sought the same outcome. His joinder was therefore a device to obtain public funding, although it was not improper for him to be joined for other purposes.
6. The existing protective costs order was not extended. A transcript was ordered to be prepared at public expense because counsel had acted pro bono.

The judgment records that the court first considered the application on paper on 20 March 2013 and directed that permission be considered at an oral hearing. At the oral hearing, permission to apply for judicial review was refused. The claimant retained the right to renew the application to the Court of Appeal, but no encouragement or protective costs order for that purpose was given.