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

The Director of Legal Aid Casework must determine the form of civil legal service actually sought, applying the criteria applicable to that service. The statutory scheme does not require the Director to consider every alternative service that might have been sought, or to grant the most generous service potentially available. Investigative representation is not an automatic fallback when full representation is refused. It is available only where prospects of success are genuinely unclear, substantial investigative work is required, and there are reasonable grounds for believing that the case will then satisfy the criteria for full representation. A decision to grant legal help instead is not irrational merely because investigative representation might offer different assistance. A pure accident does not become an act or omission of a violent nature merely because it occurred in a coercive or trafficking context.

The claimant, a recognised victim of modern slavery, sought compensation from the Criminal Injuries Compensation Authority after sustaining an injury when he fell from a ladder while working for his traffickers. The CICA refused the claim and the claimant intended to appeal to the First-tier Tribunal.

He applied for exceptional case funding for full representation. The Director refused full representation but granted legal help, stating that further instructions about threats made to the claimant were needed before prospects of success could be assessed. The claimant challenged that decision, arguing that the Director had to consider investigative representation, acted irrationally, delayed unlawfully, frustrated the statutory purpose of the scheme, and failed to consider his case under paragraph 2(1)(b) of Annex B to the Criminal Injuries Compensation Scheme.

1. Ground One dismissed. The statutory scheme required the Director to determine the application actually made. Regulations 66(2)(a), 67(2)(a) and 69(3) of the Procedure Regulations focused the decision and review on the form of service applied for. The claimant had applied only for full representation.
2. “Legal representation” is an umbrella term covering investigative and full representation. The separate criteria in regulations 40 and 41 of the Merits Regulations do not make investigative representation an automatic fallback when full representation is refused. The Director retained a residual discretion to grant an alternative service, but no duty to recast the application or conduct a free-standing assessment of other services.
3. The scheme requires the most appropriate service, having regard to proportionality, cost, resources and the statutory criteria. It does not require the most generous service. Regulation 12 of the Merits Regulations requires application of the merits criteria relevant to the service applied for.
4. Ground Two dismissed. The refusal of full representation did not amount to a finding that prospects were “unclear”. In any event, there was insufficient evidence of substantial investigative work or reasonable grounds for believing that further investigation would result in the criteria for full representation being met. Legal help could be used to take instructions, provide advice, make written submissions and instruct counsel for non-advocacy work. Its grant was therefore not irrational.
5. Ground Three dismissed. The delay claim was academic and gave no practical advantage. In any event, the delay was not manifestly unreasonable on the facts.
6. Ground Four was not a free-standing ground and permission was refused. Ground Five was unarguable. The Director’s focus on the threats made to the claimant was relevant to both paragraphs 2(1)(b) and 2(1)(c). A ladder injury could fall within paragraph 2(1)(b) if caused by an act or omission of a violent nature, but that depended on the nature, timing and implied consequence of the demand to climb the ladder.

The claim was dismissed and permission to advance Grounds Four and Five was refused.

not stated in the judgment.