Leighton, R (On the Application Of) v The Lord Chancellor

A public authority does not make a final decision merely because a policy review leaves an existing regime unchanged, where the issue remains under active consideration and further evidence is being gathered. The Public Sector Equality Duty may be discharged during an ongoing evidence-gathering process; a concluded equality assessment need not precede every stage of policy development.

A costs regime which limits access to litigation may nevertheless comply with Article 6 and Article 14 where it pursues legitimate objectives, is rationally connected to them, and represents a proportionate balance between competing interests. Courts must give considerable weight to informed legislative and rule-making choices, particularly in social and financial policy. The common-law right of access to the courts adds nothing where the same challenge fails under Article 6.

The claimant, a disabled wheelchair user, brought judicial review proceedings against the Lord Chancellor concerning the absence of qualified one-way costs-shifting protection for discrimination claims in the County Court. She argued that the Ministry of Justice’s post-implementation review of Part 2 of LASPO amounted to a decision not to extend QOCS, or alternatively that the continuing failure to extend it was unlawful.

The claim alleged breach of the Public Sector Equality Duty, irrationality and failure to take relevant considerations into account, incompatibility with Articles 6 and 14 of the ECHR, and breach of the common-law right of access to a court. The central issue was whether a final decision had been made and, if not, whether the existing costs regime was unlawful while further policy work remained in progress.

1. The claim was dismissed. The Part 2 post-implementation review did not contain a final decision not to extend QOCS to discrimination claims. Read with the surrounding evidence and subsequent policy work, it showed that the Ministry of Justice considered further evidence and analysis necessary before reaching a decision. The issue remained under active consideration. Although continued inaction might eventually amount to a de facto decision, that point had not been reached.
2. The Public Sector Equality Duty under Equality Act 2010, section 149, was not breached. The duty formed part of the process of deciding whether to extend costs protection. It was not necessary to complete a full equality assessment when the decision-making process was still at an evidential and analytical stage. Gathering further information could itself form part of compliance with the duty.
3. The irrationality challenge failed. It was rational to seek further information before deciding the issue. The defendant was also entitled to weigh access to justice against litigation costs, defendants’ interests, settlement, unmeritorious claims, existing legal aid and small-claims protections, and alternative forms of costs protection.
4. The existing regime was compatible with Article 6. Applying the four-stage proportionality test in Bank Mellat v HM Treasury (No 2) [2014] AC 700, as applied in Lawrence v Fen Tigers and others (No 3) [2015] 1 WLR 3845, the aims were legitimate, the regime was rationally connected to them, no less intrusive measure was established, and the balance did not favour the claimant. A scheme may be Convention-compliant although harsh in individual cases.
5. The common-law access-to-court argument either disclosed no free-standing ground of review or, if such a ground existed, added nothing to the Article 6 challenge. The Article 14 claim failed because the difference between discrimination and personal injury claims was justified by the different evidential and policy contexts. The UNCRPD was not a source of substantive domestic rights and did not alter the analysis.