The Legal Aid Agency (LAA), and not the court, is the authority to determine applications for legal aid by those facing High Court committal proceedings alleging breach of an order, Mr Justice Chamberlain has ruled.
The judge said that, insofar as he reached the contrary conclusion, the decision of Mr Justice Blake in King’s Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531, was wrongly decided, even though it has been followed or at least assumed to be correct in subsequent decisions of the High Court and Court of Appeal.
Chamberlain J was ruling in The All England Lawn Tennis Club (Championships) Ltd v McKay (No2) [2019] EWHC 3065 (QB), a case involving the sale of debenture tickets for Wimbledon in breach of contract.
He said the starting point was that criminal legal aid was available as of right to a person facing High Court committal proceedings alleging breach of an order. But there still had to be a ‘determination’ that the individual qualified for legal aid by the ‘relevant authority’ (under section 16(1)(b) of LASPO) before he or she could obtain it.
He said LASPO made clear either the director of the LAA or the court may be the relevant authority. It was here that Blake J went wrong, Chamberlain J said, as he assumed that, if the proceedings were classified as criminal, any application for legal aid was to be made to the court, and not the director.
This meant that, under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, the ‘relevant authority’ who must make the formal determination in cases of this nature was the director, not the court.
Chamberlain J continued: “The understandable practical concern that lay behind the decision in Bunning was that, at that time, unless the court could make the determination, there was no established procedure by which legal aid could be secured for civil contempt proceedings. That concern has now been addressed… the LAA now has an established procedure.”
Given that there was no means or merits assessment required, the LAA confirmed to the court that a determination is made “very quickly” and no more difficult to obtain than from the court.
The judge added that the position in the Court of Appeal was different. There, the court was the relevant authority and the application should be made to the court.
Edward Rowntree (instructed by Kerman and Co) for the claimants, Michael Rimer for the Legal Aid Agency and the defendant appeared as a litigant in person.