Faulkner, R (on the application of) v Director of Legal Aid Casework

The statutory charge under the legal aid scheme applies to damages recovered in human-rights proceedings unless an applicable exemption or waiver is established. Damages awarded for unlawful detention under Article 5 of the Convention do not have a special status which places them outside the ordinary costs regime. Under regulation 47 of the Community Legal Services (Financial) Regulations 2000, the waiver decision is made at the end of the case, but the conditions concerning wider public interest and cost-effectiveness must have arisen at the beginning or during the proceedings. The later 2013 Regulations clarify, rather than alter, that construction. The claim for judicial review was therefore dismissed.

Mr Faulkner had received £6,500 damages from the Supreme Court for unlawful State detention contrary to Article 5 of the Convention. The Supreme Court ordered him to pay the Parole Board’s costs in the Supreme Court, subject to the legal aid costs regime, but gave no reasons.

Mr Faulkner sought judicial review concerning whether the statutory charge should be waived so that the damages remained intact. He argued that regulation 47 permitted waiver and that applying the charge to Convention damages violated his human rights. The issues were the temporal construction of regulation 47 and whether the nature of the damages required exemption from the ordinary costs regime.

1. Applicable regime. The proceedings were governed by the Access to Justice Act 1999 and regulations made under it, because they had commenced before the commencement of LASPO. The Supreme Court’s costs order necessarily indicated that the human-rights objection had not succeeded.
2. Construction of regulation 47. Regulation 47(3) permits the Legal Services Commission to waive some or all of the statutory charge if it considers that equitable. The waiver decision is made after the case has ended, when the charge arises. The conditions in regulation 47(2)—that the proceedings have significant wider public interest and that funding the specified claimant is cost-effective—must have been satisfied at the beginning or during the proceedings. The language of regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013 confirms that reading. The later provision clarifies the earlier regulation rather than changing it.
3. Convention compatibility. The court rejected the submission that applying the charge to the damages violated the Convention. The statutory exemptions did not include this category of damages. Strasbourg had not criticised the ordinary domestic costs regime, under which costs may follow the event, parties may bear their own costs, and costs orders may substantially reduce a damages award.
4. Status of the damages. Although damages under Article 5(5) are important, Convention damages for State detention are not a class apart from other damages. They are subject to the costs regime in the same way as other damages.
5. The judicial review claim was dismissed. The claimant’s costs were to be assessed subject to the statutory protection under section 26 of LASPO. Permission to appeal was refused, with an eight-week extension of time for any application to the Court of Appeal.

The judgment describes the Supreme Court’s earlier decision in the same litigation, which reduced the Court of Appeal’s damages award from £10,000 to £6,500 and ordered Mr Faulkner to pay the Parole Board’s Supreme Court costs under the applicable legal aid regime. The Supreme Court gave no reasons. The present judicial review claim was dismissed by the Administrative Court.