Bulled, R (on the application of) v Legal Services Commission

MR JUSTICE CHARLES: This is an application for permission to bring proceedings by way of judicial review which is brought by a Mrs Bulled. She has been represented before me by her husband who I have permitted to make submissions on her behalf. The subject matter of the review as pleaded in the claim form is a decision of the Legal Services Commission on 4th October 2005 which was a decision refusing the continuation of Legal Aid.

The backdrop to the application for Legal Aid is a negligence claim being brought by the claimant against a doctor relating to diagnosis and treatment of the claimant for breast cancer. The upshot of those proceedings is that they came on for trial before Cox J. Her judgment is dated 11th May 2006. Judgment was entered for the defendant, that is the doctor. What Mr and Mrs Bulled says, and I accept, was that they were litigants in person at that trial and as such they felt very disadvantaged in the way in which they presented the case as litigants in person, having regard to the husband's medical condition and the wife's position. In particular, they say that as a result of them not having Legal Aid funding at that stage they were also not able to bring before the court relevant expert evidence. They say as a matter of background that when the matter was being looked at in 2001 and thereafter there were positive indications from experts' reports and earlier legal advice as to the merits of the claim.

Mr and Mrs Bulled rely on Article 6 in the context of the trial of the action, saying that there was a breach of Article 6 because there was not equality of arms because they did not have the relevant funding. They have appealed the decision of Cox J and that appeal, as I understand it, awaits hearing in the Court of Appeal. The claimant and her husband have been advised by somebody in the office of the Court of Appeal that the matter will not be brought on for hearing until the outcome of this judicial review is known. I suspect, but do not know, that there was some discussion as to the availability of funding for the conduct of that appeal.

What happened in the judicial review proceedings was that against the background as it existed when the judicial review claim was brought, and thus the end of last year, the proceedings came before the court in February 2006 and what was struck was what Mr Bulled described as a deal, namely that the Legal Services Commission would grant Legal Aid and the judicial review process would not proceed. What happened was that the application was adjourned. Mr Bulled told me that his understanding was that it would be full Legal Aid. I have not heard the Legal Services Commission on that point, but it seems to me there is no need for me to do so. What was actually granted was not full Legal Aid and the concept of it being full Legal Aid simply does not seem to fit with the way in which the proceedings were dealt with. What was granted was Legal Aid to enable outstanding matters to be looked at and for advice to be taken on the merits of the case at trial.

There were delays and difficulties in finding solicitors who would act for the claimant in the negligence proceedings. In the context of that, fresh funding was granted to address the further steps outlined by a doctor in her report and that was done on a special basis by reference to the solicitors who did not have the relevant contract, as I understand it, with the Legal Services Commission.

As a result of that grant of Legal Aid, counsel, in accordance with his duty, counsel wrote an opinion which is dated 2nd May 2006 and therefore very shortly before the trial date before Cox J. That is an opinion in fairly strong terms that the prospects of success were low. As a result of that, the Legal Services Commission discharged the existing certificate. As I understand the dates, in fact, that discharge took place after the trial, but in any event the claimant was not represented at the trial by lawyers because they did not have Legal Aid funding in place.

I have tried to explain, I am sorry to say without success, to the claimant and her husband that the issue for this court is as to the challenge of particular decisions. The decision that is the actual subject of the judicial review is the decision in October and, as I have explained, I accept the stance taken by the Legal Services Commission that that is now water under the bridge. The relevant decision is effectively the decision or result prompted by the opinion of counsel as to the merits of the claimant's claim in negligence, which thus far has been proved to be correct having regard to the finding of Cox J, that case of course being subject to an appeal.

I have considered what, if any, arguments I could see that the claimant could bring in respect of the later and, if I can call it, the active decision which resulted in them being litigants in person before Cox J. They told me that they had not, so far as they could recollect it, applied for an adjournment of that trial. I confess that I have not been able to identify any grounds in public law to which they can challenge the decision of the Legal Services Commission in the light of the history and, in particular, in the light of the advice received by counsel dated May 2006. Accordingly, I have concluded that this claim for judicial review raises no arguable points which merit it proceeding to a full hearing. I have not analysed the detail underlying the decision in October, but it seems to me that that is properly to be regarded as water under the bridge, save perhaps in the context of costs. I see no argument flowing from the claimant's assertion through her husband that the deal was in fact that the claimant would be granted full Legal Aid in February 2006.

One then moves on to the Legal Aid that was granted and asks is there a public law challenge that has any realistic prospect of success to the decision not to provide Legal Aid for the trial. My answer is that I have been unable to identify any such argument. Accordingly, it follows that this application does not pass the test set for permission: is there an arguable claim? My answer is no, so I refuse permission.

That leaves the issue of costs. Mr Bulled, do you have any points you want to make on costs?

MR BULLED: I am not going to make any comment on costs, my Lord.

MR JUSTICE CHARLES: The Legal Services Commission in their written argument have suggested and submitted that the correct order is no order as to costs. I agree as I understand the logic of that argument. In any event, my logic is that in May of this year the Legal Services Commission wrote to the claimant saying that the October decision was now no longer an active decision and had been overtaken by events, and inviting the claimant to withdraw the judicial review on the basis that the active decision was the one in May 2006 and that had not been appealed against and was not the subject of the review. That offer was not taken up. That could result in a conclusion that the costs of the acknowledgment of service should actually be paid by the claimant. However, in my view very properly, the Legal Services Commission, having regard to the fact that there was an agreement reached in February 2006 which resulted in a reconsideration in the matter and the grant of Legal Aid as I have indicated, suggest no order as to costs. In my judgment, that is the correct order for me to make. It recognises that, as a result of this judicial review, further steps were taken which resulted in a grant of funding in the way that I have set out. I therefore make no order as to costs.

MR BULLED: Thank you, my Lord.

MR JUSTICE CHARLES: Thank you.