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Keehan as mustard ? Costs order against Lord Chancellor

 

Just when you think you’ve seen it all regarding Human Rights damages claims tacked onto care proceedings and costs, Keehan J delivers this curveball.

 

Re H (A minor) v Northamptonshire CC 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/282.html

 

And we’re now seeing two High Court Judges waving to each other from opposite sides of the Grand Canyon on this. On one side, Keehan J is doing everything possible to make sure that the parents get their damages un-gulped up by the Legal Aid Agency and the stat charge, and on the other, Cobb J is saying that Parliament set up the stat charge in this way and if they’d intended to make an exception for the stat charge applying on care proceedings so that all the damages got swallowed up, they’d have done that. And that damages aren’t always the answer anyhow.

(Keehan J is playing a Lord Denning type role here, in manipulating and coaxing the law into shapes like a Venetian glassblower to get to the morally right outcome. I think myself that Cobb J is right in law, but who knows until the Court of Appeal tell us?)

 

The stat charge is tricky to understand here, so here’s an analogy.

Larry goes to a restaurant. As he is leaving, he steps on a woman’s foot. He shouldn’t have done it, he was being careless. He apologises, and offers to buy the woman a drink. She’s happy with that solution. The restaurant manager, however, says  “This woman ate a 3 course meal here for free tonight because she had a voucher, but that cost me money. So if you want to pay for a drink for her, that’s fine, but you have to give me all of the money that her food would have cost. If you don’t want to do that, you can just give me the money for the drink, but she get no drink and no money”

 

(Parents get free legal aid in care proceedings, even if they are millionaires. But if they win any money from a ‘connected’ case – even if that is damages for being badly treated, that money goes FIRST to pay back the legal aid agency not just in the case where they won the money but ANY legal aid they’ve had. Even though it was ‘free’. Only if there’s anything left does the parent get anything.  Because the legal costs in the care proceedings will usually dwarf the damages (just as a 3 course meal is more expensive than a drink), the only way that the parent can get any money is if the costs are paid too. And that’s tricky, because the law on costs is very clear that there are limited circumstances in which that is possible.

 

(The Kirklees blog spells all of that out, but I thought people might welcome an easier solution)

 

In this case, the parents had encountered a breach of their human rights, relating to section 20 abuse (but even this now, may be overtaken by the Court of Appeal guidance in the Hackney case where they suggest that failure to follow the guidance on s20 isn’t automatically a human rights breach). The LA made an offer to settle, and the parents lawyers understandably wanted to know, before they accepted or refused it, whether the parents would get that money, or whether it would be swallowed up by the Legal Aid Agency.

The LAA initially told them that the stat charge would bite and gobble up all of the damages. They then changed their mind, faced with being told that they’d be joined as a party to the High Court proceedings to fight that out.

It was submitted by the Lord Chancellor that HRA damages should be assessed without regard to the fact that the claimant is legally aided. I agree and accept that the assessment of the quantum of damages in a HRA claim should be made without regard to the fact that the claimant is legally aided. Where I part company with the Lord Chancellor is in respect of the submission that the impact of the statutory charge on the extent to which the claimant will receive any part of the damages awarded is irrelevant to a court assessing damages and then considering whether to make consequential orders for costs. I emphatically disagree.

 

(This is the exact opposite of Cobb J’s conclusion in the Kirklees case)

A very cunning scheme was devised, making use of CPR  rule 46.2  (That noise you hear is every family lawyer in the country shuddering at the mention of the Civil Procedure Rules. It gives us the same visceral reaction as the idea of standing up and addressing the Stade Francais in our schoolboy/girl French)

 

“46.2.— Costs orders in favour of or against non-parties

(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must—

(a) be added as a party to the proceedings for the purposes of costs only; and

(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.

(2) This rule does not apply—

(a) where the court is considering whether to—

(i) make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings;

(ii) make a wasted costs order (as defined in rule 46.8); and

(b) in proceedings to which rule 46.1 applies (pre-commencement disclosure and orders for disclosure against a person who is not a party).”

 

 

And the scheme here was complex (and I don’t think anyone will ever get away with it again, so I’m not going to spell it out in detail) –  the parents get the damages, the LA pay the costs. The Court then ordered the Lord Chancellor to pay MOST of the LA’s costs, to compensate them for the fact that it is only the Lord Chancellor failing to waive the stat charge in this case (which she has the statutory power to do) that led to the LA having to pay the costs.

There’s very little in law that I enjoy more than the Lord Chancellor losing in Court – a pleasure I did not get tired of during Chris Grayling’s wondrous tenure, and though Liz Truss hasn’t been in post long, she hasn’t really done herself any favours, so this is a fun read (though very very technical)

But I don’t think it is an entirely safe decision.

 

Firstly,

 

  • The local authority is forcibly critical of the second email sent on behalf of the LAA by Mr Rimer on 22 December. Mr Tyler submitted that the position of the LAA as set out in that email, namely that the statutory charge would apply to any damages awarded to H in respect of costs incurred under his public funding certificate in respect of the care proceedings, was clear and unequivocal. In his and Mr Mansfield’s skeleton argument it is asserted:

 

“48. The LAA has inappropriately – almost certainly unlawfully – sought to recoup the cost of the provision of the ‘non-means, non-merits’ legal aid available for the claimant from the award of damages to which he is entitled due to the breaches of his human rights.

49. Only at the eleventh hour – and when faced with the prospect of a High Court trial on the issue – has it adopted an approach which is correct in law.

50. In so doing, it has caused the unnecessary attenuation of both the HRA and the care proceedings.”

 

 

Okay, those are submissions and not the judgment, but I don’t think you can properly conclude that the LAA was unlawful in following the LASPO provisions. The provisions are stupid and ugly and unkind and mean-spirited, but they are lawful provisions. There isn’t (yet) a section 6 challenge that the LASPO provisions in this regard are themselves incompatible with the HRA. It would be interesting to see the outcome if someone takes it that far – LASPO is far from beloved as a piece of legislation.

The point, I presume is making use of Keehan J’s previous side-step of the stat charge by claiming that the HRA proceedings ‘are not connected’ to the care proceedings.  I am afraid that I am with Cobb J on that – there may be occasions when the damages case is genuinely ‘not connected’ to the care proceedings, but these clearly were.

 

Glad you're back George

Glad you’re back George

 

 

But more importantly

 

  • Ms Stout’s principal submission was that the court had no power, on the facts of this case, to make an order for costs. She relied upon the provision of the CLA(C)R 2013 and in particular on Part 3 and regulations 9(1), 9(2) and 10. In a case where one party is legally aided (i.e. the claimant) and one party is not legally aided (i.e. the local authority) she contended that the effect of regulation 9(2) was that an order for costs could only be made against the Lord Chancellor if all the conditions set out in regulation 10 are satisfied.
  • It is common ground between the parties that the conditions of this regulation are not satisfied in this case.

 

So not possible to make the costs order against the Lord Chancellor, because the power to do so sets out a condition that has to apply and the condition doesn’t.

That wasn’t the end of it though

  • I regret I do not accept the submission that the court does not have the power to make a costs order against the Lord Chancellor in this case. I so decide for the following reasons.
  • The provisions of s.26 LASPO only apply where costs have been awarded against a legally aided party. In these circumstances the order for costs “must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances …”: s.26(1) LASPO. A s.26(1) costs order “means a costs order against a legally aided party where cost protection applies”: reg.2(1) CLA(C)R 2013. The phrase ‘cost protection’ means “the limit on costs awarded against a legally aided party in relevant civil proceedings, set out in section 26(1) and (2) of the Act: reg.2(1) CLA(C)R 2013. All of these provisions are based on a costs order having been made against a legally aided party. In this case, of course, no order for costs has been or will be made against the claimant.
  • The only possible basis on which the Lord Chancellor’s submissions on this issue could succeed is if I interpret s.26 LASPO and the CLA(C)R 2013 to mean that it applies if there is the ‘potential’ for a costs order being made against a legally aided party. The clear wording of the section and the regulations simply do not permit such an interpretation.
  • Regulation 9 of CLA(C)R 2013 is headed ‘Effect of this Part’. Regulation 9(1) provides that ‘This Part applies where cost protection applies’. If I insert the clause set out in Reg 2(1) for the definition of ‘cost protection’, reg.9(1) would read ‘This Part applies where the limit on costs awarded against a legally aided party in relevant civil proceedings set out in section 26(1) and (2) of [LASPO] applies’. Cost protection does not apply in this case and thus the provisions of Part 3 of the CLA(C)R 2013 do not apply in this case, most especially regulation 9(2).
  • It is plain that regulations 9 and 10 apply in respect of the Lord Chancellor as the funder of legal aid to a party to civil proceedings. Reg.10 only applies where ‘proceedings are finally decided in favour of a non-legally aided party’. It is designed to provide recompense to that party, in specified and limited circumstances, where there is a shortfall between the costs incurred by that party and the limited costs which the legally aided party is ordered to pay, in consequence of which the non legally aided party will suffer financial hardship. Once again those circumstances do not arise in this case.
  • I am completely satisfied that

 

(a) the CLA(C)R 2013 has no application or relevance to this case; and(b) they do not preclude the court from making a costs order against the Lord Chancellor in appropriate circumstances, still less do they provide the Lord Chancellor with a ‘blanket immunity’ against an order for costs as a third party or otherwise.

 

 

Keehan J summoned up the spirit of JPR Williams and  David Duckham and jinks and weaves to make his side-steps work. It is beautiful to watch.  But I think there’s a forward pass in there somewhere.

 

 

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Justice Swiss style

 

[Although this is ham-fisted satire, all of the quotations from the Parliament Public Accounts Committee report on legal aid reforms are actually true. They really did say this stuff]

 

The Lord Chancellor today, whilst standing in front of one of the four surviving copies of Magna Carta and drawing on it with a thick black crayon, announced the latest reforms to the English justice system.

 

 

“Having been criticised by the Public Accounts Committee for our current reforms, it has become clear to me that I have been too timid, and the time has come to introduce the Swiss model of justice”

 

http://www.familylaw.co.uk/news_and_comment/legal-aid-reforms-not-based-on-evidence-claims-report

 

Gems in the Public Accounts Committee critique of the last set of reforms include :-

 

‘Almost two years after the reforms, the Ministry is still playing catch up: it does not know if those still eligible are able to access legal aid; and it does not understand the link between the price it pays for legal aid and the quality of advice being given. Perhaps most worryingly of all, it does not understand, and has shown little interest in, the knock-on costs of its reforms across the public sector. It therefore does not know whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. The Department therefore does not know whether the savings in the civil legal aid budget represent value for money.’

 

And

 

The Ministry admits that it still has little understanding of why people go to court and how and why people access legal aid.

 

And

 

Contrary to its assurances to Parliament, the Ministry does not know whether people who are eligible for legal aid are able to get it.

 

 

And

 

“In short, there is not a lot the Ministry does know.”

 

 

So, what exactly is the Swiss model that the Lord Chancellor plans to roll out? Here are his words in his speech, which was sent out with his annotations in italics.

 

 

 

“People have said to me that my reforms have rolled back the clock to Victorian times, that these are Nineteenth Century policies. To which I say – that’s a start. But we can do more. Let’s go right back to the Fourteenth Century.

 

The Swiss people are known for their watch-making, ski-resorts, banking and their fine chocolate – any product the Swiss make is intricate, rich with quality and with precise smooth workings. [Note – stay away from any reference to cheese, in case people suggest the policy is ‘full of holes’]

 

This sort of quality is exactly what I intend to bring to the English justice system when I borrow from the Swiss system. Fourteenth Century style.

 

“Let’s get medieval on their ass”   [Note – has Tarantino got back to us with clearance for that quote yet? If not, use air quote fingers when saying it]

 

Why, do you know that at the moment, the amount that we spend on justice every year would be enough to pay for every single illegal immigrant to live in Disneyland Paris for ten years and that our fat-cat legal aid lawyers earn more in a week than Pablo Picasso earned in his entire lifetime. The pensions for many of these snout-in-the-trough lawyers mean that in practice, they are able to retire before they have even finished taking their A Levels. [Note – do not get lured into providing a source for these ‘statistics’]

 

We can do better, we must do better and we will do better. Let us look to the Swiss and their innovations in law [Note, ignore the Geneva Convention – oh , sorry the Americans have already beaten us to it in ignoring that]

 

From now on, our system of people in wigs talking Latin and Judges ruling against me will be replaced by a smooth as silk Swiss model.

 

Any person accused by the state of doing anything naughty will be brought to the nearest town square, and given a crossbow. There, they will attempt to shoot an apple off the head of their eldest child without harming a hair on their head.

 

The same model will apply in all civil claims, probate, divorces, and family claims. Get the kid in, put the apple in place, shoot that off .

If successful, they will win the case.   (unless they have brought a judicial review against me, in which case the apple will be a grape, held between the teeth of their eldest child. And the eldest child will be on a bouncy castle. And the claimant will have to make the shot whilst on a unicycle. After nine pints of snakebite. In the dark. Left-handed. Best out of fifteen. Whilst being tickled. )

 

But, you say to me, won’t introducing this marvellous new Swiss system require a huge capital investment to make the changes? Can we afford to go Swiss?

 

We can’t afford NOT to go Swiss, is what I say.

 

I have anticipated that. By selling off all of our Court buildings and forcibly retiring all Judges and sacking all lawyers apart from the ones I use, the Government can fund apples and crossbow bolts and still achieve a 99% saving on the current budget. And Golden Delicious have already made a lucrative sponsorship offer, with the possibility of partnership with Granny Smith also on the horizon.

 

The Swiss system has the additional benefit in that there are no appeals. If the accused /claimant cannot make the shot, then the case is over. Also the taxpayer will not have to fund the accused’s dependent children during the period of imprisonment.

 

There may be some on-costs of mopping for any trials that don’t end in a not guilty verdict, but we have been approached by a Countess Bathory and some Romanian aristocrats who are interested in bulk purchase of blood, which ought to recoup those costs.

 

I know that looney left-wing do-gooders and vested interests may be saying to themselves “Hey Chris, using first born children as apple-holding instruments of justice and risking their lives just to save costs – that’s cruel”

 

And I say to those do-gooders – you know the old saying “If you can’t do the time, do lots and lots of archery practice before you do the crime”

 

The Swiss model, when we tested and rolled it out in Nottingham, did have two minor flaws. The first was that for childless offenders, it was something of a licence to wreak havoc – but many parts of that city are no longer burning. The second was that Phil the Power Taylor is now a criminal overlord whom the law is powerless to touch, having been acquitted nineteen separate times, and who with his band of merry darters is stealing most of the cost savings that the scheme managed to implement.

 

 

Nonetheless, I am satisfied that a national rollout will solve all of these problems and that the new justice system will no longer be an ‘arrowing experience. [pause for laughs and warm applause. Resist any request by journalists to put an apple on own head]

 

 

 

 

 

[Musical references for this piece would be either Pulling Mussels from the shell by Squeeze “Behind the chalet, my holiday’s complete, and I feel like William Tell, Maid Marian on her tiptoed feet”     or the more frenetic Bug powder dust by Bomb the Bass/Justin Warfield “I always hit the apple when I’m going to shoot / so you can call me William Tell or Agent Cooper to boot” and later on the wonderful   “I got a splinter though, damn, you know man it hurt / I got a Vegemite sandwich from Men at Work”

 

They’re both great, listen to both of them. ]

 

https://www.youtube.com/watch?v=AAHueb8j0wI&index=10&list=PLfFETal_82YoiPI3WtDcTpJZhHskPgRvp     – I recommend LOUD and at home.

 

Pannick attack

I know some of my readers are not in the Chris Grayling fan club  (which is a shame, because you get a lovely badge and a code book that allows you to translate what he’s saying into something that resembles common sense   – hint, you just say the opposite of what he’s saying)

 

so you might enjoy Lord Pannick tearing him a new one, and giving everyone a route map to crush the new judicial review legislation into oblivion in the future

 

Lord Pannick (CB): My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.

The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.

In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,

“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[

Official Report

, Commons, 13/1/15; col. 812.]

I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.

21 Jan 2015 : Column 1345

In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,

“unless the court is of the opinion that there are exceptional circumstances”.

At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.

Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.

Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.

We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.

I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.

21 Jan 2015 : Column 1346

I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,

“severe doubts about whether secondary legislation should be subject to judicial review”.

These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.

Furthermore, judicial review is not, as the Lord Chancellor again suggested,

“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[

Official Report

, Commons, 13/1/15; cols. 819-20.]

Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.

4.45 pm

Your Lordships’ Constitution Committee said recently, in its excellent report on the office of Lord Chancellor, that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.

 

If you want to see the Hansard debate (the rest of it is not quite so amazing as this, which actually made me want to stand on my desk and say “captain, my captain”) it is here

 

http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/150121-0001.htm#15012189000542

 

Judicial review is a thorn in my side, as it is for anyone who works for a public body – there is little that ruins your month more than getting a judicial review claim letter, it is a miserable and painful experience. But that pain is part of the price you pay for having a State that can be properly held to account for behaving unreasonable, irrationally or unfairly in its dealings with people.  Many people like me learn to tolerate and even love the thorn, and its a shame that our Lord Chancellor can’t see it that way.

But then, if you can’t grasp that your actual role is to be a Check and Balance, you might not understand the importance of Checks and Balances.

Court service to pay father’s legal costs K& H

 

I had imagined that the President would be the first Judge to use the powers he speculated in  Q v Q that the Court might have, to make Her Majesty’s Court Service pay the legal costs of a party who would have their article 6 rights breached by being unrepresented. But I was wrong. It was H H Judge Bellamy, sitting as a Deputy High Court Judge  (always making my head hurt about whether it is precedent authority or not)

 

Re K and H (children : Unrepresented father : Cross-Examination of a Child) 2015   (The 2015/1 in bailii’s link suggests it might be the first 2015 reported judgment as well)

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/1.html

Bald facts – private law dispute, allegation about father sexually abusing the child, allegation disputed. Judge ruled that child was a capable witness and should be cross-examined. Dad did not want to cross-examine the child himself and all agreed that this would be bad – the forensic exercise much more serious than a Judge just ‘putting’ things to the child and in effect presenting father’s case.

Lord Chancellor asked to intervene, and represented very ably by Ms Whipple QC  (funny how there’s always public money to get the best for the Lord Chancellor, but not for others…)

 

I’m going to surprise you now. I think the Lord Chancellor should appeal this decision, and I think they should win the appeal.

 

Why?

Because this isn’t a case of a father who would have got funding pre LASPO now not getting it, and not a case of the Legal Aid Agency being mealy-mouthed about section 10 discretion to grant funding. This man was over the financial limits for legal aid. And not a little bit – he was double the disposable income limit.

Now, that doesn’t mean that he can necessarily afford to pay privately for legal representation, nor that paying privately wouldn’t be expensive and wouldn’t hurt.

But we’ve not had in this country for private law disputes a situation where EVERYONE gets free legal advice regardless of means (we have that for parents in care proceedings, that’s different). There has always been a financial limit – a point at which the State says “you earn too much to get free legal advice”  (or more accurately “you earn too much for other taxpayers to be footing your bill for free legal advice”.   You might argue until the cows come home about whether that’s right or fair, but it has ALWAYS been the system. This is not a Grayling change, this man would not previously have got free legal advice under any government you care to mention.

Whether it is fair or not, the State has said, there’s a cut-off point – we soften it by saying when you are near it you can still get legal representation but you have to make a contribution to it, but if you’re double the cut off point, you don’t get free legal representation.  Nobody in that position ever has, and there weren’t article 6 breaches in any of those cases.

If HMCS are going to fund this man, then they are potentially going to fund many more like him – and more to the point, all those people in the past who had to pay privately for their lawyers are going to rightly feel aggrieved.

The ECHR has never said that States can’t set financial limits on free legal aid and representation, nor where those limits are.

I’m no fan of LASPO, and have been pretty vocal about it, but this isn’t a LASPO failure or a LASPO injustice. This is a flat-out  “when someone really needs legal advice and the State limits suggest that they ought to put their hand in their own pocket, should the taxpayer pay instead?”

Just because this bill is coming from HMCS doesn’t mean that the money isn’t ultimately coming from a taxpayer  (and frankly, I’d be really, really wary of taking the case on for him because I don’t think whoever does it will ever see a penny – after all, if the Court stiffs you on your bill, what are you going to do about it? Sue?   I think the French expression is, “to whom do you complain when it is the Judge who is screwing your wife?”)

 

I think it is a good judgment, and it is thorough and detailed, but for me, that key point is not given sufficient weight, and for that reason, I’d be expecting it to be appealed and successfully appealed to boot.

Ministry of Justice press release – fixxored

 

 
The MOJ sent me this press release today
A new law taking effect today will reinforce the importance of children having relationships with each parent following family breakdown. Parental involvement is the last part of the Children and Families Act 2014 to be implemented and marks the end of a significant phase of reforms to the Family Justice system.

The change will encourage parents to be more focused on children’s needs following separation and the role they each play in the child’s life. It will require family courts to presume that each parent’s involvement in the child’s life will further their welfare – where it is safe. However the needs of the child will always remain the paramount priority of the courts.

In 2011 the Family Justice Review landmark report found that the family justice system was ‘no system at all’ and that children’s needs were not being met. Since then the Government has made bold reforms so that the needs of children are firmly at the heart of the family justice system from now on.

The reforms include:
• The introduction of the new Family Court in England and Wales with a simpler single system and a network of single application points making it much easier for the public.
• The introduction of a 26 week time limit for care proceedings to reduce further the excessive delays in these cases and give greater certainty to the children involved.
• New child arrangements orders which will encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’.
• Compulsory family mediation information meetings so separating couples must consider alternatives to the harmful and stressful court battles when resolving financial matters and arrangements for children.
• The Government continues to monitor closely the family justice system, and has recently announced a single mediation session for both parties if one of them is already legally aided.

 

I thought it was in need of a bit of modification, so I have fixed it for them. Here is the new version

 

The Government held an independent review into Family Justice, which concluded that there was no need for a statutory declaration about ‘equal parental involvement’ – but we ignored that and announced that we’d introduce it, then we got scared off by all the objections, but then we were too scared to admit we were wrong, so we cobbled together some meaningless form of words that achieves nothing and satisfies no one and changes nothing. That new meaningless form of words comes into effect today. You’re welcome!

In 2011 the Family Justice Review landmark report found that the family justice system was ‘no system at all’ and that children’s needs were not being met. Since then the Government has made bold reforms so that the needs of children are firmly at the heart of the family justice system from now on.

The reforms include:

 
Making it so that if there’s an allegation of rape the alleged rapist probably has to cross-examine the alleged victim themselves

Removing legal aid from private law proceedings and hiding behind a “it will happen for cases that deserve it” clause that we secretly brief is never to be used

Having the Children’s Commissioner report that our reforms have had bad consequences for children

Locking the doors to public counters so that nobody can talk to our staff

Using the word “Hub” at every possible opportunity, without ever outlining how these Hubs will be funded or staffed.

Making user-friendly new forms that are utterly unintelligible and take an eternity to fill in

Giving ‘residence’ and ‘contact’ a new name in the mistaken belief that that will make everyone behave reasonably at all times
The introduction of a 26 week time limit for care proceedings to reduce further the excessive delays in these cases and give greater certainty to the children involved (although the Court of Appeal have told everyone that as long as they tick the right box on the new user-friendly form, they can go over the 26 weeks).
Compulsory family mediation information meetings that have a far lower take-up rate than when they were purely voluntary

Introducing Regulations that were beyond the scope and the power of the Lord Chancllor to do so, which were xenophobic in intent and a sop for the right-wing Press / our MPs who were thinking of defecting to UKIP

Did we mention the Hubs?

 

 

Yes, I think that’s rather more accurate