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

The discretion to waive a legal aid statutory charge at the end of proceedings is conditional on the relevant public-interest and cost-effectiveness criteria having been satisfied when funding was granted or during the litigation. Those criteria cannot be established retrospectively. Compensation awarded for a breach of Article 5 is not placed in a special category which prevents ordinary costs or the statutory charge from reducing the recovery. A legally aided litigant remains subject to ordinary litigation risks and cannot rely on Convention rights to obtain insulation from costs consequences after pursuing and losing an appeal.

Mr Faulkner received damages for delay in reviewing his life sentence, following earlier proceedings establishing a breach of Article 5(4). The Supreme Court reduced the damages to £6,500 and made a costs order against him. The Legal Aid Agency later refused to waive the statutory charge. Mostyn J dismissed his judicial review claim in [2016] EWHC 717 (Admin).

The appeal concerned the proper construction of regulation 47 of the Community Legal Service (Financial) Regulations 2000, the significance of the Supreme Court’s unreasoned costs order, and whether refusal of waiver infringed Mr Faulkner’s Convention rights.

The Court of Appeal unanimously dismissed the appeal. Lady Justice Asplin gave the judgment, with Lord Justice Peter Jackson and Lord Justice Longmore agreeing.

1. Under regulation 47(3) of the Community Legal Service (Financial) Regulations 2000, the waiver discretion arises at the end of the case because that is when the statutory charge arises. However, the conditions in regulation 47(2)(a) and (b) are prerequisites to the discretion and must be satisfied at the beginning of the case or, at the latest, during the litigation. They cannot be satisfied retrospectively.

2. The reference to proceedings having the potential to produce benefits for others requires a prospective assessment. The Agency must also decide whether it is cost-effective to fund the specified claimant rather than other claimants or potential claimants. That choice cannot be made after funding has finished. The later regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013 clarified the earlier provision rather than changing it.

3. As no assessment under regulation 47(2) had been made at any stage, the Agency was entitled to refuse waiver. Where the possibility of waiver matters, solicitors should expressly ask the Agency to decide the regulation 47(2) criteria when funding is sought and should renew the request if funding for a further appeal is sought.

4. Mostyn J was wrong to infer from the Supreme Court’s unreasoned costs order that it had rejected the human-rights argument. The order followed the result of the appeal and cross-appeal, and the waiver question was for the Director of Legal Aid Casework, not the Parole Board. No dependable inference about the merits could be drawn.

5. Article 5 damages are not immune from ordinary costs consequences. Scordino v Italy (No 1) [2007] 45 EHRR 7 concerned excessive burdens and access to a tribunal in a different context. Saadi v United Kingdom (2008) 47 EHRR 17 showed that costs may be awarded even where they reduce non-pecuniary compensation. The statutory charge seeks, so far as possible, to place legally aided litigants in the same position as successful privately funded litigants. Mr Faulkner therefore could not invoke Article 5 to avoid the consequences of pursuing and losing his appeal and cross-appeal.

• Court of Appeal (Civil Division): dismissed the appeal against the judicial review decision.
• High Court, Queen’s Bench Division, Administrative Court: Mostyn J dismissed the claim for judicial review in [2016] EWHC 717 (Admin).