Tirkey, R (on the Application of) v The Director of Legal Aid Casework & Anor

A statutory charge securing repayment of civil legal aid costs from property or damages recovered by the assisted party does not, without more, breach access to justice, property, non-discrimination or anti-trafficking rights. Article 6 ECHR and Article 47 of the Charter protect practical and effective access to a court and legal representation; they do not guarantee recovery of a judgment debt. Article 15 of the Council of Europe Convention on Action against Trafficking requires compensation rights and appropriate domestic arrangements, but does not impose an unconditional obligation on the state to pay every award. The statutory charge is a loan-repayment mechanism, subject to the domestic legal aid scheme, and may validly apply where the assisted party recovers money.

The claimant, a victim of trafficking and servitude, obtained substantial awards in Employment Tribunal proceedings against her former employers. Only a small proportion was recovered because assets were dissipated and enforcement was delayed. The Legal Aid Agency applied the statutory charge under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to the recovered sum, leaving the claimant with no payment.

She sought judicial review, alleging breaches of Articles 4, 6 and 14 ECHR, Article 1 of Protocol No 1, Article 47 of the Charter of Fundamental Rights of the European Union, and EU anti-trafficking instruments. The central issue was whether those rights required the statutory charge to be disapplied or waived.

1. The claim for judicial review was dismissed. No article of the ECHR and no provision of EU law rendered the statutory charge unlawful as applied.

2. The statutory charge under section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is intended to place a legally aided litigant who recovers money in substantially the same position as an unassisted litigant who funded the litigation. The funding operates as a loan to the extent that recovered property or damages can repay the public cost.

3. Article 6 ECHR protects practical and effective access to a court. It does not guarantee that a successful claimant will recover damages from the wrongdoer. The claimant had access to the Employment Tribunal, obtained judgment and had access to enforcement procedures. The subsequent failure to recover most of the award resulted from the defendants’ asset dissipation and enforcement difficulties, not denial of access to justice. The statutory charge was proportionate.

4. Article 15 of the Council of Europe Convention on Action against Trafficking required domestic provision for legal aid and a right to compensation from perpetrators. It did not require unconditional state compensation. The domestic legal aid, civil remedies and enforcement arrangements satisfied the Convention’s requirements.

5. The award was subject to the statutory charge from the outset and therefore did not constitute an unencumbered possession for the purposes of Article 1 of Protocol No 1. In any event, the charge pursued the public interest and was proportionate.

6. Article 14 was engaged because the claimant’s circumstances fell within the ambit of Article 4 and a trafficking victim had other status. However, exceptional case funding already addressed complexity, vulnerability and access to representation, and those features were common to recipients of such funding. There was no sufficient basis for treating trafficking victims differently in applying the charge.

7. Article 47 of the Charter concerned effective access to justice, including legal aid where necessary for representation. It did not guarantee receipt of an award. Article 12 of Directive 2011/36/EU was directed essentially to criminal investigations and proceedings, and free legal representation did not prevent recoupment from a sufficient recovery.

First-instance judicial review proceedings. No prior appellate decision was stated in the judgment.