News In Focus
27 April 2009
Judicial review granted in legal aid defamation case
A man who was falsely reported by Edinburgh City Council officials to be a convicted murderer has been awarded legal aid to fund a review of the Scottish Government's "directions" that restrict legal aid for defamation actions, according to the Scotsman.
Danny Wilson is attempting to pursue an action of defamation against Edinburgh's social work department after it wrongly recorded that he had served a life sentence for murder.
The error was only discovered when Mr Wilson and his wife had their fertility treatment withdrawn on the basis that the doctors had received disturbing information. Mr Wilson applied for legal aid in order to pursue the claim against the department but his application was refused.
Legal aid was formerly not available for any action of defamation. However the Scottish Government has issued guidelines advising that it should be granted in exceptional cases. The Scottish Legal Aid Board (SLAB) "must be satisfied that the degree of exceptionality is the same as, or is approximately the same as, in the facts found in the case of Steel and Morris v United Kingdom." This refers to the well known "McLibel" case, in which the McDonalds burger chain sued two campaigners over leaflets they distributed.
In December 2008, Mr Wilson applied for legal aid to apply for a judicial review of the Scottish Government regulations on the basis that the directions effectively put legal aid beyond reach, and therefore breach article 6 (1) of the European Convention of Human Rights. SLAB has now agreed to fund the review.
Mr Wilson's solicitor Cameron Fyfe said: "This is really good news. There's a sense SLAB are unenthusiastic about funding judicial review but the board will have taken advice that our case has a reasonable prospect of success. It's still a long haul."