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SLAB wins appeal against quashing of legal aid grant

24 May 2018

The Scottish Legal Aid Board has won an appeal against a judge's decision to annul a grant of legal aid to challenge a separate decision in favour of the council objecting to the grant.

Lord President Carloway, Lord Drummond Young and Lord Malcolm in the Inner House of the Court of Session ruled that the grounds of appeal in the case for which legal aid was sought, did not require to be disclosed to Glasgow City Council, which already had ample notice of what the case was about.

The applicant for legal Aid, PQ, sought judicial review of decisions of the council relating to the care of his mother. PQ challenged the assessment of her needs and the reduced weekly payment determined by the council following that assessment. This failed at first instance and PQ sought to appeal. When SLAB notified the council of PQ's application for legal aid to bnring the appeal, the council asked for further detail of the basis of the appeal and made representations against the application, which it claimed was "entirely lacking in specification" and contained no basis on which legal aid could properly be granted. Legal aid was initially refused, but granted following PQ's request for a review.

Lord Woolman in the Outer House held that PQ had not complied with SLAB's guidance or given fair notice of his case to the council (click here for report). He commented: "Applicants who provide no detail of their case in the statutory statement and who also decline to consent to the Board disclosing the relevant information to the opponent, subvert the scheme."

On appeal SLAB argued that its decision did not determine civil rights and obligations or engage the council's civil rights; it was entitled to be satisfied that PQ had probable cause and that it was reasonable that he should receive legal aid; it was under a duty of confidentiality, which promoted full and frank communication with PQ; the only information which had to be provided was a statement of the nature of the case and the interest of the applicant; what was fair depended on the context; and the Lord Ordinary's approach would encourage satellite litigation.

The council argued that in lodging detailed objections to applications for legal aid it was seeking to protect public funds by ensuring that only actions with some legitimate legal issue were funded. Confidentiality did not trump fairness; fairness required SLAB to give reasons for its decision; and the ability subsequently to revoke a legal aid certificate did not absolve SLAB of the responsibility to act fairly.

Lord Carloway, delivering the opinion of the court, said there was no doubt that SLAB was under a duty to act fairly, but what fairness required in different situations was variable. The grant of legal aid was part of a process that might ultimately determine civil rights or obligations, but in the present case that would involve PQ providing the notice required in civil proceedings and the council having the opportunity to respond. A successful unassisted person could apply for an order for expenses against the legal aid fund.

He continued: "The statutory framework of the Legal Aid (Scotland) Act 1986 reflects the absence of a direct effect of the grant of a legal aid application on an opponent’s civil rights and obligations. The opponent is given a right to receive intimation of the fact that an application has been made. He or she is provided with a limited amount of information about that application; notably the nature of the case. Just what is required will vary according to circumstances, but what is clear is that provision of the detail of the legal underpinnings of the case is not what is intended...

"The 1986 Act does not provide an opponent with the same opportunity to challenge the applicant’s contentions as exist in either a civil action or where an administrative decision will have a direct effect on his or her civil rights or obligations. This is clearly deliberate, having regard to the nature of what is to be decided."

Fife Regional Council v Scottish Legal Aid Board 1994 SLT 96, which the Lord Ordinary had considered to be no longer good law, adopted the correct approach and was indistinguishable from the present case.

The Lord President added: "The degree of information which an application requires to contain will vary according to the circumstances. However, in the context of an appeal, where the Board (and the opponent) will have a copy of the opinion relative to the interlocutor to be reclaimed, very little is required beyond a simple statement that legal aid is required for an appeal. Unless the grounds for an appeal are extraordinary, the general nature of the points to be made on appeal ought to be obvious to an opponent."

He concluded: "The council had sufficient information upon which they could, and did, submit representations. There was no apparent unfairness in any of this.

"It follows that the court must disagree with the Lord Ordinary that the grounds of appeal required to be disclosed to the opponent."

Click here to view the opinion of the court.

 

 

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