Tirkey, R (on the Application of) v The Director of Legal Aid Casework & Anor

The Claimant is an Indian national born in August 1956. Early in 2008 she began to work in domestic service for a Mr and Mrs Chandhok. Initially she worked for them in India. In May 2008 she was brought by them to the United Kingdom. They arranged the visa for her to enter the United Kingdom. The Chandhoks were and are settled in this country. Between May 2008 and November 2012 the Claimant worked for them at their home in Milton Keynes. She did so in conditions of servitude.

The Claimant then sought legal advice regarding a claim for compensation against the Chandhoks. In due course she took proceedings in the Employment Tribunal. She was granted Exceptional Case Funding by the Legal Aid Agency. The grant of funding was not immediate or straightforward but nothing turns on that for the purposes of these proceedings. Proceedings in the Employment Tribunal were protracted. The Claimant made a claim for caste discrimination which was the subject of a preliminary ruling by the Employment Tribunal, a ruling which was appealed unsuccessfully by the Chandhoks to the Employment Appeal Tribunal.

The full liability hearing before the Employment Tribunal occupied 8 days during July 2015. In a decision handed down on 17 September 2015 the Employment Tribunal found that the Chandhoks had failed to pay the Claimant the National Minimum Wage, the total shortfall being £183,773.53 which the Chandhoks were ordered to pay to the Claimant as an unlawful deduction from her wages. The tribunal also found that the Claimant had been unfairly dismissed, was the victim of unlawful harassment on the ground of her race and was the victim of indirect religious discrimination. Also the Chandhok were found to be very substantially in breach of the Working Time Regulations. There was no finding as such that the Claimant had been trafficked or had been held in servitude. Such findings strictly would have been outside the jurisdiction of the Employment Tribunal. However, the factual findings of the tribunal were wholly consistent with the proposition that the Claimant was a victim of trafficking and that she had been held in servitude by the Chandhoks.

The Employment Tribunal conducted a remedy hearing over 2 days on 5 and 6 November 2015. The judgment on remedy was promulgated on 4 December 2015. The overall award (which was in addition to the order made in respect of the unlawful deduction from wages) was £82,762.61. This included awards for unfair dismissal, injury to feelings by reason of discrimination on grounds of race and religion, aggravated damages in respect of the discrimination and damages for personal injury. Thus, the total award made to the Claimant was £266,536.14.

Throughout the proceedings in the Employment Tribunal the Claimant was represented by the Anti-Trafficking and Labour Exploitation Unit (“ATLEU”). ATLEU represents the Claimant in these proceedings. However, ATLEU is not funded to undertake work in relation to enforcement of any award obtained in proceedings. It is their practice to refer enforcement to Freshfields Bruckhaus Deringer (“Freshfields”). Freshfields then undertake enforcement on a pro bono basis, something for which that firm is wholly and unreservedly to be commended. As turned out to be the case here, the process can be lengthy and costly. It is undertaken at no cost to someone in the Claimant’s position.

Freshfields were instructed shortly before the promulgation of the liability decision of the Employment Tribunal. As soon as the decision was available, it was clear to Freshfields that there was a serious risk that the Chandhoks would seek to avoid the financial consequences of the decision by dissipating their assets. The decision referred to the mendacious manner in which they had conducted the proceedings and to their willingness throughout to ignore legal obligations. Therefore, Freshfields recognised the need to take urgent steps to enforce the decision. It was known that the Chandhoks’ main asset was a residential property in Milton Keynes. The day after the liability decision was handed down, they registered the decision at the Central London County Court. On 22 September 2015 Freshfields made an application to the same court for an interim charging order on the Milton Keynes property. At all times they made clear to the court that the application was urgent, both when it was first submitted and on 23 October when the application was re-submitted at the court’s request due to a clerical error in the initial application. In the event the court did not allocate the application to a judge until three weeks after the re-submission of the application. Thus, it had not been dealt with by 9 November 2015. That was the date on which the Chandhoks transferred title in the property to a third party thereby frustrating the attempt by Freshfields to preserve the asset for the purposes of enforcement.

Freshfields were able to take steps to avoid complete dissipation by the Chandhoks of their assets. However, the total sum recovered by way of enforcement was only £35,702.80 i.e. around 13% of the overall award. Because the Claimant was in receipt of legal aid, the Legal Aid Agency (on behalf of the Lord Chancellor) exercised its statutory charge over that recovered amount to the value of the legally aided service received by her. That charge extinguished the recovered amount with the result that the Claimant has received none of the award pursuant to the decision of the Employment Tribunal. In these proceedings she claims that the application of the statutory charge to the sum recovered by her is unlawful because it breaches her Convention rights under Articles 4, 6 and 14 of the European Convention on Human Rights and under Article 1 Protocol 1 of the same Convention. She further claims that application of the statutory charge in her case is unlawful by reference to the Charter of Fundamental Rights of the European Union and the European Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.

Current provision of civil legal aid is governed by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“the Act”). The Claimant’s claim against the Chandhoks proceeded in the Employment Tribunal. Civil legal aid is not generally available in such proceedings. The Claimant fell within Section 10 of the Act as an exceptional case. The relevant part of Section 10 is in these terms:

1.

Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

2.

This subsection is satisfied where the Director—

(a)

has made an exceptional case determination in relation to the individual and the services, and

(b)

has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

3.

For the purposes of subsection (2), an exceptional case determination is a determination—

a)

that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

i)

the individual's Convention rights (within the meaning of the Human Rights Act 1998), or

ii)

any rights of the individual to the provision of legal services that are enforceable EU rights, or

b)

that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

The fact that the Claimant fell within the exceptional case criteria nonetheless required the Legal Aid Agency to determine whether the Claimant qualified for civil legal aid under Section 11 of the Act. First, the Claimant’s financial resources had to be such that she was eligible. Second, the Legal Aid Agency had to consider the criteria identified in the Regulations made under Section 11 of the Act. One factor which the criteria had to reflect was “the likely cost of providing the services and the benefit which may be obtained by the services being provided…” (Section 11(3)(a)).

The regulatory regime required by Section 11 of the Act is contained in the Civil Legal Aid (Procedure) Regulations 2012 and the Civil Legal Aid (Merits Criteria) Regulations 2013.

Where (as here) representation is sought for bringing proceedings (called “full representation”) the Merits Regulations require that cost benefit criteria are met. The cost benefit criteria assess whether the potential benefit justifies the cost. In respect of damages claims, this is by reference to the criteria specified in reg 42(2) (which involves assessment by reference to the prospects of success and the likely damages), unless the case is assessed as being of “significant wider public interest”, in which case a proportionality test (set out in regulation 8) applies”

In the context of a monetary claim the benefits of the claim consist of the likely damages. That term is defined in Regulation 9 of the 2013 Regulations.

“Likely damages” means the amount of any damages or other sum of money contested in the case that the individual who is applying for civil legal services is likely to receive if substantially successful at trial or other final hearing, calculated in accordance with regulations made under section 12 of the Act (determinations).

The Regulations made under Section 12 of the Act are the 2012 Regulations (supra). Regulation 32 of those Regulations identifies the material which must be provided to allow the Legal Aid Authority to consider likely damages. Insofar as is relevant to these proceedings it is in these terms:

(1)

Where an application for Licensed Work requires the Director to consider likely damages (in accordance with regulations made under section 11 of the Act), the application must include—

(a)

an estimate of likely damages; and

(b)

an explanation of the estimate, including the calculations required by paragraph (2).

(2)

An estimate of likely damages must take into account of

…………….

(d)

the ability of the other party to the proceedings to pay any damages or other sum of money contested in the case.

The effect of those various provisions is that someone in the Claimant’s position, once she has been made the subject of an exceptional case determination and has demonstrated that she is financially eligible for legal aid, must satisfy the merits test by reference to the likelihood of the benefit accruing from the relevant proceedings balanced against the likely costs. In a claim for a monetary award the benefit will be the damages the assisted person is likely to receive. In order to assess the likely damages the individual applying for legal aid must provide material which allows the Legal Aid Agency to assess the ability of the proposed defendant to pay whatever award of damages is likely to be made. If the proposed defendant does not appear to have the ability to pay, the individual will not satisfy the proportionality test. In this instance those acting on behalf of the Claimant obtained full credit reports on the Chandhoks which showed the beneficial interest in the property in Milton Keynes as well as combined annual salaries of around £70,000 and ownership of other assets valued in excess of £20,000. This material was provided pursuant to Regulation 32 (supra) in order to satisfy the proportionality test.

It is apparent that the scheme of the Act and the Regulations to which I have already referred assumes that legal aid generally will only be granted where the individual in receipt of legal aid is expected to make sufficient recovery to make the proceedings an economic proposition. A successful party to civil proceedings will expect to obtain an order for costs from the unsuccessful party. That is not the norm in proceedings before the Employment Tribunal. Equally, there are cases in which such an order will be appropriate. Regulation 76(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations sets out the circumstances in which a costs order may be made:

A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—

(a)

a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;

(b)

any claim or response had no reasonable prospect of success…..

The Claimant made an application for costs to the Employment Tribunal in the course of the remedy hearing. The Chandhoks indicated that they would pay her reasonable costs, to be assessed if not agreed. This must have been an acknowledgment that they fell within one or other of the conditions in Regulation 76(1). In the event the application was not pursued. It was judged not to be a worthwhile exercise given the dissipation of assets by the Chandhoks.

Although there will be an expectation that a successful legally aided party in civil proceedings will recover her costs, the Act provides protection to the Legal Aid Agency by way of the statutory charge. Section 25 of the Act (so far as is relevant) is in these terms:

(1)

Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a)

any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b)

any costs payable to the individual by another person in connection with such proceedings or such a dispute.

(2)

Those amounts are—

(a)

amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b)

other amounts payable by the individual in connection with the services under section 23 or 24.

(3)

Regulations may make provision for exceptions from subsection (1).

Although this provision dates only from 2012, the statutory charge has been a feature of civil legal aid since its introduction in 1949 via the Legal Aid and Assistance Act 1949. Its rationale was explained by Sir John Donaldson MR in Davies v Eli Lilly [1987] 1 WLR 1136 at 1140B/H:

Put simply, but for present purposes wholly accurately, legal aid helps those who lose cases, not those who win them. Legal aid makes “out and out” grants to those who lose cases. It only makes loans to those who win them. This is the way it works. Mr. X has a claim which, looked at from his point of view, looks reasonable. He applies for legal aid. His means are assessed, and if they are sufficiently small he will be given legal aid. According to how small his means are, he may have to make some contribution to the legal aid fund, although there are many whose contributions are assessed as nil. Subject to his paying those contributions, which are never very large, the legal aid fund pays the whole of his costs of the litigation.

If at the end of the case he loses, he may be ordered to pay a small sum to the successful defendant, but, unless there has been a dramatic change in his circumstances — he has had a major win on the pools or something of that sort — this is the extent of his liability. His own costs of fighting the action will be borne by the legal aid fund and the defendant will be left to pay all the costs incurred by him in successfully defending the claim. In other words, the unsuccessful plaintiff has received an out and out grant from the state.

But suppose the plaintiff wins, as the legal aid fund claims that he does more often than not. Then a very different picture emerges. As the successful party, he does not have to pay the defendant's costs and uaually the defendant will be ordered to pay his. Let him not celebrate too soon. He may find that the defendant has no money or the legal aid fund may have to incur further expense in making the defendant pay. Furthermore, and this is very important, the defendant will, at best, only be ordered to pay the plaintiff's taxed costs, and this is almost always less than the costs which have been incurred by the plaintiff in prosecuting his case to a successful conclusion. So there will always be a shortfall which may be very large if the defendant cannot meet the order for costs or if the plaintiff failed on some subsidiary issue and has been ordered to pay the defendant's costs in fighting that issue.

“Why worry?” says the successful plaintiff to himself. “I have my damages, I have paid my contribution to the legal aid fund and that fund has met all the costs which I have incurred.” Unfortunately for the temporarily happy plaintiff, Parliament has required the defendant to pay the damages not to him but to the legal aid fund. That fund is required to use his damages to pay itself back every penny of the costs which it has incurred in assisting him to fight his case. It is only if, after this has been done, that anything which is left will be paid to him. It may be that nothing will be left or it may only be relatively small change.

In other words, for the successful plaintiff the legal aid fund provides a loan, not a grant, at least to the extent that his damages are sufficient to repay the loan. Put slightly differently, every legally aided plaintiff should realise that if he succeeds in recovering more by way of damages, costs and interests than it has cost to recover them — if the money actually paid by the defendant in respect of damages, costs and interest exceeds his own costs, which after all is what he expected — he will be in no better position than an unassisted litigant.

The Regulations made under Section 25(3) of the Act are the Civil Legal Aid (Statutory Charge) Regulations 2013. Regulation 5 provides for exceptions to the statutory charge. The exception said to be relevant in this case is that provided for in Regulation 5(1)(d), namely “any sum, payment or benefit which by virtue of any provision of, or made under, an Act of Parliament cannot be assigned or charged”. The Acts of Parliament said to be engaged in this case are the Human Rights Act 1998 and the European Communities Act 1972. That legislation incorporated the European Convention on Human Rights and any Charter or convention enacted by reference to any EU Treaties into English law, in particular those set out at paragraph 7 above. It follows that I must consider each of the Convention and/or Charter rights said to be breached by enforcement of the statutory charge in order to determine whether such enforcement is barred by the operation of Regulation 5(1)(d).

Before I consider the application of the exception in Regulation 5(1)(d) to this case I need to refer to the issue of waiver. The Lord Chancellor has the power to waive the statutory charge in certain circumstances. In very limited circumstances there is a power to waive the charge where it would cause grave hardship or distress to the legally aided party (Regulation 8). This applies only if the statutory charge is in favour of the provider of the legal services and the legal services involve family help. This is of no relevance to the Claimant in these proceedings. There also is the power to waive the statutory charge in cases of significant wider public interest. Regulation 9(1) is as follows:

The Lord Chancellor may, where the Lord Chancellor considers it equitable to do so, waive all or part of the amount of the statutory charge, if the following conditions are satisfied—

(a)

the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

(b)

the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings.

Until the hearing before me began the Claimant intended to argue that Regulation 9(1) applied in her case and that it provided the Lord Chancellor with a power to waive the statutory charge in her case. Since the Lord Chancellor had denied that he had any such power, the Claimant argued that I should quash his decision and require him to remake it. Her case was that the Lord Chancellor should have concluded that it was equitable in her case to waive the statutory charge. Insofar as the terms of Regulation 9(1)(d) appeared not to apply to the Claimant, her case was that they should be read down so as to permit the Lord Chancellor to exercise the power to waive the statutory charge. That was the first ground put forward in her amended grounds dated 26 September 2017. This ground was reflected in the submissions made in the skeleton argument dated 15 November 2017 lodged on her behalf. It was said that the Claimant’s Convention rights required the Lord Chancellor to apply Regulation 9(1) even where no wider public interest had been identified at the time that the determination was made in the Claimant’s case. Alternatively, I was invited to find that Section 25 of the Act and Regulation 9(1) were incompatible with the Human Rights Act 1998.

In the event those arguments were not pursued before me. Thus, it is not necessary for me to determine their validity. Had it been necessary, I would have been required to consider the judgment of Mr Justice Mostyn in Faulkner v Director of Legal Aid Casework [2016] 4 WLR 178. In that case the court was concerned with the predecessor regulations made pursuant to the Access to Justice Act 1999. Mr Justice Mostyn concluded that waiver pursuant to the regulations was only permitted when the determination of wider public interest had been made at the beginning of or during the course of the case. He considered the 2013 Regulations and noted that they were unambiguous as to the point at which the determination had to be made for a power to waive to exist. In the proceedings before him, that observation was obiter. However, I am sure that the observation was correct. It was to be argued by the Claimant that the decision in Faulkner did not deal with the interpretative duty on the court to read down the regulations so as to give effect to the legally aided individual’s Convention rights. I doubt whether that argument would have prevailed given the terms of the judgment of Mr Justice Mostyn at paragraphs 30 et seq.

Before considering the extent of the Convention and/or Charter rights of the Claimant and their impact on the proposed exception to the statutory charge I set out the circumstances of the Claimant as they appear from the evidence before me. As the Employment Tribunal found, she was forced to work for the Chandhoks for 18 hours a day over a period in excess of 4 years. Her wages amounted to around 41 pence per hour. She was prevented from practising her religion. The proceedings before the Tribunal were lengthy and difficult. The Claimant was required to re-live her experiences in servitude in the course of the proceedings. Any litigant will find the legal process difficult. It was particularly so for the Claimant due to the factual background of the case and her unfamiliarity with this country and its legal system.

Unsurprisingly the Claimant was relieved once the proceedings before the Tribunal were over and she was pleased with the outcome. Equally unsurprisingly she is angry and distressed by the fact that so little has been recovered from the Chandhoks and that such recovery as there has been will result in no pecuniary benefit to her. There was psychological evidence before the Tribunal as to effect on the Claimant of her years of servitude. This evidence led to the award of damages for personal injury. The evidence has now been updated. The view of the psychologist is that, given the background to the case, the operation of the statutory charge has led to a deterioration in the Claimant’s psychological condition.

The relevant part of Article 6(1) of the Convention is as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It is well-recognised – and accepted by the Lord Chancellor in these proceedings – that Article 6 inter alia requires that any individual should have the right of access to the civil courts. What is said here is that the right is not to be illusory but practical and effective. Further, it is argued that to impose the statutory charge in such a way as to deprive the individual of the entirety of the sum recovered from the court prevents effective access to justice. The submission made is that, had the charge been imposed at the outset of the proceedings, the claim before the Tribunal would never have been brought and that the fact that it was only levied after recovery of monies from the Chandhoks makes no difference.

Three decisions of the European Court of Human Rights (“the European Court”) are relied on to make good those arguments. The first is Hornsby v Greece (1997) 24 E.H.R.R. 250. That case concerned UK citizens living in Rhodes who sought authorisation to set up an English school on the island. They were refused authorisation on the basis that they were not Greek nationals. This was contrary to EU law and the individuals obtained judgments from the Supreme Court setting aside the refusal. Despite this the Greek authorities maintained their refusal. The European Court found that there had been a breach of Article 6. The passage relied on by the Claimant is at paragraph 40 of the judgment.

The Court reiterates that, according to its established case law, Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 should describe in detail procedural guarantees afforded to litigants—proceedings that are fair, public and expeditious—without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6; moreover, the Court has already accepted this principle in cases concerning the length of proceedings.

Particular emphasis is placed on the reference to execution of a judgment being regarded as an integral part of a trial. However, this was said in the context of the Contracting State declining to respect the judgment of a superior court of record. As the European Court said, this was incompatible with the rule of law. The domestic legal system in Greece was such that it allowed a binding judicial decision to be ignored. Here the system permitted enforcement of the judgment and steps were taken to achieve that. There was not a failure of the system as occurred in Hornsby. Hornsby provides no support for the proposition that the English costs regime and/or the statutory charge amount to a breach of Article 6.

The second authority relied on is Stankov v Bulgaria (2009) 49 E.H.R.R. 7. Stankov was detained for around 21 months pending trial in relation to allegations of theft in respect of which eventually he was acquitted. He took proceedings against the State in respect of his detention which was found to have been unlawful. He claimed the Bulgarian equivalent of 23,600 euros in general damages. Although he succeeded in his claim that the whole of his pre-trial detention was unlawful, he was awarded only the equivalent of 1,050 euros in damages. At the same time he was required to pay court fees of around 950 euros, this sum being calculated as 4 per cent of the total amount claimed. Thus, the fees bore no relation to the sum actually recovered. The European Court found that this amounted to a breach of Stankov’s Article 6 rights due to the excessive restriction on his right of access to the court. The Court acknowledged that a requirement to pay fees to civil courts of itself was not incompatible with Article 6. But the amount of fees in a given case could mean that access was unduly restricted. The Claimant relies in particular on the following passage in the judgment: “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.” She argues that, where an individual conducts lengthy and difficult litigation yet emerges with nothing, her access to justice has to be regarded as illusory.

The decision in Stankov did not involve a finding that an individual who had to pay fees not far short of the sum recovered ipso facto was denied access to the court. Rather, the problem for a litigant in Stankov’s position was that he had to specify the level of damages he expected to recover when there was no developed or accessible case law or other material which would enable him to come to any proper view of the likely award. The European Court went so far as to say that a Bulgarian lawyer would not have been in a position to make a sensible determination. In addition, the rate of the fees was a flat rate with no flexibility. The Court considered that the practical difficulties in assessing the likely award and the high rate of the fees in the context of Stankov’s case amounted to a disproportionate restriction on his access to justice. Thus, there was a breach of his Article 6 rights.

Whilst this decision supports the argument that costs or fees which follow the judgment may amount to a breach of Article 6, it otherwise takes the Claimant nowhere. In her case the bulk of her claim was pecuniary. That which was not could be assessed by reference to well-recognised guidelines and precedent. The costs which would be incurred in conducting her litigation were controlled and within her knowledge at all times. The basis of the statutory charge was clearly defined. It only would arise as it eventually did in the event of the Claimant being unable to make any substantial recovery from the Chandhoks. It was argued that there was a breach of Article 6 because, had the Claimant known at the outset of the proceedings that the statutory charge would leave her with no damages, she would never have brought the claim at all. I reject this argument. In that event the Claimant would not have brought the claim because she would have known that the Chandhoks would not be able to satisfy any judgment so as to provide her with any damages. Article 6 is concerned with access to justice. It does not act as a guarantee that the aggrieved litigant will recover from the perpetrator of the civil wrong.

The final decision of the European Court said to be relevant is Kniat v Poland [2005] ECHR 539. Kniat was the defendant in divorce proceedings. A decree of divorce was granted. Kniat wished to appeal against the basis on which the decree was granted i.e. that she was responsible for the marital breakdown. She was required to pay a court fee of 10,000 zloty within seven days of lodging the appeal failing which the appeal would be rejected. She sought partial exemption from the court fee on the basis that her only means were the funds from the lump sum order made in the matrimonial proceedings. That exemption was refused as a result of which her appeal fell. The European Court decided that the court fee was a disproportionate bar to access to the court. The factors which were significant to the Court were: the claim was non-pecuniary and concerned Kniat’s civil status; Kniat was the defendant in the proceedings; no consideration was given to the suggestion of a partial exemption; the lump sum was Kniat’s only asset.

The conclusion of the European Court was as follows:

Assessing the facts of the case as a whole and having regard in particular to what was at stake for the applicant in the proceedings, the Court considers that the judicial authorities failed to secure a proper balance between, on the one hand, the interest of the State in collecting court fees for dealing with claims and, on the other hand, the interest of the applicant in pursuing her appeal against a divorce judgment.

The particular feature of Kniat’s case on which reliance is placed is the fact that Kniat’s only asset was the lump sum payment. A parallel is drawn with the sum recovered via the efforts of Freshfields i.e. that sum was the Claimant’s only capital asset. There is a similarity in that respect. But the position of Kniat otherwise was very different from the Claimant’s. The Claimant’s claim did not affect her civil status. The Claimant was the instigator of the proceedings rather the defendant. As the European Court made clear, its conclusion was reached after an assessment of the case as a whole, not by reference to one particular feature.

Article 6 serves to ensure the individual has proper access to justice. The statutory charge did not interfere with the Claimant’s access in this case. The eventual result was that the Claimant did not recover any of the damages awarded to her. That was because the Chandhoks cynically disposed of their assets after the first decision was reached and because the proper steps taken by Freshfields to enforce the judgment failed due to delays in the County Court. No sensible interpretation of Article 6 involves a guarantee that an individual will recover her award of damages.

The aim of the statutory charge is to place the legally aided litigant in the same position as the litigant who does not have the benefit of public funds but who is able to fund the litigation from her own resources. By definition that aim is consistent with Article 6 and proper access to justice. Insofar as it does interfere with access to justice, such interference is proportionate. The charge never imposes a debt on the legally aided individual greater than the damages recovered by her. It only arises if no or no sufficient costs are recovered from the losing party. If the opposing party is known to have no or no sufficient assets prior to the commencement of proceedings, the legally aided individual will not bring the proceedings. That will be due to the fact that the proposed defendant has no assets, not because of the statutory charge. If there is an identifiable risk of dissipation of assets, there are procedural routes available to avoid or reduce that risk.

I find some assistance in the recent decision of Mr Justice Cobb in Re CZ [2017] 1 WLR 2467 (A Child). The facts of the case are of no relevance save that within family proceedings a successful claim was made by legally aided individuals for damages for breaches of their Convention rights under Article 6. The consequence of the costs order made by Mr Justice Cobb was that the award of damages under Section 8 of the Human Rights Act 1998 was extinguished by the application of the statutory charge. He noted that, had Parliament intended that damages awarded under the Human Rights Act 1998 should be exempt from the statutory charge, it would have provided for this in clear terms in the Regulations. He also observed that there would be cases in which the effect of the statutory charge would be to obliterate a modest award of damages. Though he did not specifically consider access to justice when making these observations, he was engaged in a consideration of the costs consequences of the statutory charge in a case where the claim was for breach of Convention rights and where the claimants were vulnerable.

Article 4(1) of the Convention is in stark terms:

No one shall be held in slavery or servitude.

It is accepted that the Claimant was a victim of trafficking. She undoubtedly was held in servitude by the Chandhoks. It is argued on her behalf that, by reference to the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), Article 4 does not simply impose an obligation on Contracting States to protect people from trafficking and servitude. It also requires such victims to be compensated. The fact that the effect of the statutory charge in this case was that the Claimant has not been compensated means that there was a breach of Article 4 of the Convention. Since the Human Rights Act makes it unlawful for a public body to act in a way which is incompatible with a Convention right, the exception in Regulation 5(1)(d) must apply.

Article 15 of the Convention on Action against Trafficking (“ECAT”) is the relevant ECAT provision and is as follows:

Article 15 – Compensation and legal redress

(1)

Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand.

(2)

Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law.

(3)

Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.

(4)

Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.

ECAT is accompanied by an explanatory report which deals in turn with each of the articles in that convention. The relevant parts of the explanatory report in relation to Article 15 are in these terms:

The purpose of this article is to ensure that victims of trafficking in human beings are compensated for damage suffered. It comprises four paragraphs. The first is concerned with information to victims. The second deals with victims’ right to legal assistance. The third establishes victims’ right to compensation and the fourth is concerned with guarantees of compensation….

Under paragraph 2 each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law. As court and administrative procedure is often very complex, legal assistance is necessary for victims to be able to claim their rights….. This provision does not give the victim an automatic right to free legal aid. It is for each Party to decide the requirements for obtaining such aid……

Paragraph 3 establishes a right of victims to compensation….If, in proceedings against traffickers, the criminal courts are not empowered to determine civil liability towards the victims, it must be possible for the victims to submit their claims to civil courts with jurisdiction in the matter and powers to award damages with interest. However, even though it is the trafficker who is liable to compensate the victim, by order of a civil court or – in some countries – a criminal court, or under a judicial or extrajudicial transaction between the victim and the trafficker, in practice there is rarely full compensation whether because the trafficker has not been found, has disappeared or has declared himself bankrupt. Paragraph 4 therefore requires that Parties take steps to guarantee compensation of victims. The means of guaranteeing compensation are left to the Parties, which are responsible for establishing the legal basis of compensation, the administrative framework and the operational arrangements for compensation schemes. In this connection, paragraph 4 suggests setting up a compensation fund or introducing measures or programmes for social assistance to and social integration of victims that could be funded by assets of criminal origin.

The Claimant argues that ECAT, and in particular Article 15(4), guarantees compensation to victims of trafficking. Applying that guarantee to the Claimant’s position, the statutory charge is unlawful because its effect was to remove the Claimant’s compensation.

Reliance was placed on the wording of Article 15(4) i.e. the requirement to adopt such “measures as may be necessary to guarantee compensation for victims”. It was submitted that, although the explanatory report refers to a compensation fund, this reference should not be taken to restrict the terms of Article 15(4). I was referred to Rantsev v Cyprus and Russia (2010) 51 E.H.R.R 1. A young woman was trafficked from Russia to Cyprus to work as an “artiste” in a cabaret. She came to the notice of the Cypriot authorities but they did not take steps to take her into protective custody or otherwise to preserve her safety. In due course she died in suspicious circumstances. The European Court found a violation of Article 4 on the part of the Cypriot authorities. As will be apparent the facts of that case are of no relevance to these proceedings. However, the European Court considered the general principles relating to the positive and procedural obligations under Article 4 as follows (paragraphs 284 and 285):

In assessing whether there has been a violation of art.4, the relevant legal or regulatory framework in place must be taken into account. The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, art.4 requires Member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a state’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.

In itsSiliadin judgment, the Court confirmed that art.4 entailed a specific positive obligation on Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prohibit and punish trafficking. The Court observes that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers. It is clear from the provisions of these two instruments that the contracting states, including almost all of the Member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking. Accordingly, the duty to penalise and prosecute trafficking is only one aspect of Member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under art.4 must be considered within this broader context.

The Claimant particularly relies on the use of the words “practical and effective protection of the rights of victims” as demonstrating that the national legal and regulatory framework must be taken to include a provision such as the statutory charge. Where the effect of the charge is as it was in this instance, it prevents effective protection of the rights of the victim of trafficking.

I was also referred to Chowdury and others v Greece App 21884/15, 30 March 2017. Again the facts are of little relevance to the Claimant’s case. A large group of Bangladeshi migrants were recruited to work at a strawberry farm in Greece. Their working conditions were appalling. Their wages were minimal. Even then the employers refused to pay them. Complaints to the local police went unheeded. When a large group of the workers went to the employers to ask for their wages, an armed guard opened fire on the group and caused serious injuries to 30 of the workers. The employers were prosecuted on a charge of human trafficking whilst the armed guard and a foreman were prosecuted for causing really serious harm. The employers were acquitted on the basis that the workers had freedom of movement. The sentence of the foreman included a compensation order of 1,500 euros i.e. around 43 euros per worker. The European Court concluded that the legislative framework in Greece complied with Article 4. Equally, the Court determined that the operational measures adopted by the Greek authorities prior to the shooting were insufficient to prevent trafficking i.e. the police did not respond properly. Further, the Greek judicial procedure had failed to meet the requirements of Article 4 both by reference to the acquittals and to the level of compensation ordered.

The Claimant’s argument is that Chowdury establishes the proposition that Article 4 serves to give particular victims of trafficking the right to compensation and that, if there is a legislative framework which does not operate properly in a particular case, this is not consistent with Article 4.

I am satisfied that the statutory charge does not violate Article 4 when applied as it was in the Claimant’s case. Article 15(2) of ECAT requires provision of free legal aid for victims of trafficking under the conditions provided by its internal law. The civil legal aid scheme as it applied to the Claimant satisfied that requirement. Article 15(3) of ECAT requires the state to ensure that victims of trafficking have the right to compensation from the perpetrators. The relief obtained by the Claimant was precisely that. Article 15(4) of ECAT does not impose an unconditional requirement for the state to compensate victims of trafficking. The requirement is “in accordance with the conditions under its internal law”. The internal law in the United Kingdom includes the civil remedies open to a victim of trafficking, the provision of legal assistance and the means to enforce any judgment obtained. That provides the guarantee in terms of civil process required by ECAT.

The examples given within Article 15(4) are a compensation fund or programmes funded from assets confiscated from traffickers. In the context of the criminal process in the United Kingdom the conditions of its internal law include a criminal injuries compensation scheme which applies to victims of trafficking. For that scheme to apply there must have been a crime of violence (as relatively widely defined in the scheme) causing injury. I was told in the course of submissions in reply on behalf of the Claimant that there have been 243 applications to the current scheme of which 54 have been successful and 68 have been rejected with the balance still to be determined. The significance of these figures to the Claimant’s submissions was not explained. The fact that some applications to the current scheme have been unsuccessful do not mean that the scheme does not protect victims of trafficking. For a scheme to be effective does not require it to provide every applicant with compensation. Further, if a trafficker is prosecuted to conviction in the criminal courts and there are available assets, the court can and will order compensation to the victim.

I reject the notion that the European Court in Rantsev said anything which could be taken to support the proposition that the statutory charge undermines the practical and effective protection of the rights of victims of trafficking. As is clear from the context of the decision in Rantsev the Court was concerned with the criminal law and regulatory measures in relation to businesses and immigration policy.

I also reject the argument that the decision in Chowdury serves to guarantee the Claimant the sums she was awarded by the Employment Tribunal. The case was concerned solely with the failure of the police to investigate the complaints of the victims and the failure of the judicial system to reach appropriate findings in relation to the victims’ status. As an adjunct to the finding in relation to the judicial system the European Court considered that compensation of 43 euros in criminal proceedings for someone having been serious injured in a shooting did not meet the requirements of Article 15(4) of ECAT. There is no possible comparison between those circumstances and the position of the Claimant.

Article 1 Protocol 1 of the Convention is concerned with protection of property.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

It is not immediately obvious how the operation of the statutory charge could fall within this Article. The award made by the Employment Tribunal was always subject to and encumbered by the charge. It is arguable that the award never was a possession of the Claimant. The sums recovered were paid in accordance with the terms of the grant of legal aid to the providers of the services to the Claimant. Insofar as the award could be said to fall within the Article, the Claimant was deprived of it by the state enforcing the repayment of the loan due. That does not amount to deprivation of property in the sense envisaged by this Article. As has already been observed, the funding the Claimant received amounted to a loan, not a grant.

Reliance is placed on Stran Greek Refineries and another v Greece (1994) 19 E.H.R.R. 293 to support the proposition that the Claimant’s award was a possession of the purposes of Article 1 Protocol 1. In that case the applicants had obtained an award in their favour in arbitration proceedings. It was final and binding, required no further enforcement measures and was not subject to appeal. The award was then challenged in the Greek courts by the state. Before the challenge had been considered judicially, the state enacted a provision rendering the award void and unenforceable. The European Court concluded that there was a breach of Article 1 Protocol 1, the arbitration award being a possession. All that this decision establishes is that the final arbitration award in that case was a possession. It does not assist in consideration of the position where the award was subject to a first charge by reference to the costs of prosecuting the claim.

The Claimant argues that interference with her award had to be proportionate if it were not to amount to a breach of Article 1 Protocol 1. It is to be noted that deprivation of possessions is permissible if it is in the public interest. The statutory charge is the means by which the Legal Aid Authority recovers the loan made to the legally aided litigant if she succeeds in her claim. Every litigant knows that this is how the charge operates. The loan arrangement is justified in that it puts the legally aided litigant in an equivalent position to those not eligible for legal aid. It allows the public purse to recoup costs it has incurred if there is money available to meet those costs. That is in the public interest. For the same reasons it is in the general interest.

In any event the application of the statutory charge was proportionate for the reasons already given above. The situation is very similar to that which arose in Sims v Dacorum Borough Council [2015] AC 1336. The claimant in that case was the joint tenant of a property, his tenancy being subject to a term that the full tenancy would be terminated if either of the tenants wished to terminate his or her interest in the property. The other tenant did terminate her interest in the property. The local authority (as the landlord) obtained an order for possession. The claimant appealed on the ground that his eviction was contrary to Article 1 Protocol 1. That appeal failed because he lost his possession due to the terms of the lease which he himself had made. He could not in those circumstances sustain an argument that there was a breach of Article 1 Protocol 1. Here the Claimant accepted the offer of legal aid knowing that Section 25 of the Act provided for a statutory charge which would arise in just the circumstances which in due course eventuated.

Article 14 of the Convention is in these terms:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It will be observed that Article 14 does not provide a free-standing right. Rather, it ensures that the other rights in the Convention are enjoyed without discrimination on any of the grounds set out in the Article. However, that does not mean that breach of another Convention right is a pre-requisite to the application of the non-discrimination provision. The position was explained in Stec v United Kingdom (2005) 49 E.H.R.R. 295:

The Court recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions (see, amongst many authorities, Sahin v Germany [GC], (2003) 36 EHRR 765 at [85]. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall 'within the ambit' of one or more of the Convention Articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at [71]; Schmidt (Karlheinz) v Germany (1994) 18 EHRR 513 at [22]; and Petrovic v Austria (1998) 33 EHRR 307 at [22].

In this case the Claimant’s case is that there were violations of her Article 4 and Article 6 rights. I have concluded already that there were not. However, her circumstances fell within the ambit of Article 4. Although there was no breach of her Convention right under that Article, the Claimant was held in servitude. Therefore, I still must consider the application of Article 14.

It is accepted that a victim of trafficking – an individual in the position of the Claimant – has “other status” for the purpose of Article 14. The Claimant’s case is that a victim of trafficking is highly likely to be impecunious. Proceedings involving an allegation of trafficking are likely to be lengthy and costly. (I shall refer to the evidence filed on behalf of the Claimant shortly.) Therefore, the effect of the statutory charge on a victim of trafficking will be greater than on other legally aided individuals. That means that the effect is discriminatory.

In support of the proposition that, in order not to discriminate against the Claimant, the Legal Aid Authority should have treated her differently to other legally aided individuals, the Claimant cites Thlimmenos v Greece (2001) 31 E.H.R.R. 15. Thlimmenos was a Jehovah’s Witness. For religious reasons he refused to enlist in the Greek army. He was convicted of insubordination, a felony under Greek law. Later he wished to become a chartered accountant. Because he had been convicted of a felony, he was barred from doing so. He complained that he had been discriminated against because no distinction was drawn between those who had committed an offence simply because of their religious beliefs and those convicted of other offences. His complaint was upheld by the European Court. The state violated the Convention rights of Thlimmenos by not introducing exceptions to the rules barring those convicted of a felony from becoming a chartered accountant. It was said that the state should treat differently those whose situations are significantly different. The discrimination fell within the ambit of Article 9 which guarantees religious freedom.

The evidence filed by the Claimant includes the statements of Jamila Duncan-Bosu. She is a solicitor at ATLEU. She has considerable experience of acting for victims of trafficking in different courts and tribunals. Her evidence is that such victims come from poor backgrounds and are unusually impecunious. She also states that, by their nature, claims made by victims of trafficking are factually and legally complex. The type of litigant involved means that preparation of a case is lengthy and time-consuming. It is argued on behalf of the Claimant that this evidence shows the disproportionate effect of the statutory charge on a victim of trafficking. Moreover, it is said that the Defendants has provided no evidence to counteract this proposition. Given what was said in Thlimmenos the Claimant should have been treated differently to other legally aided individuals.

The Claimant was in receipt of exceptional case funding. Unlike most people seeking a civil remedy in a court or tribunal, she was in receipt of legal aid. The criteria for exceptional case funding involve the Legal Aid Agency considering the evidential, procedural and legal complexity of the case in addition to the issue of potential interference with or breach of the applicant’s Convention rights if funding is not granted. By definition, therefore, the case of a legally aided individual in receipt of exceptional case funding will be factually and legally complex. In addition, the Legal Aid Authority in assessing whether exceptional case funding should be granted take into account the ability of the individual to present the case taking into account such matters as language difficulties. These are the factors which it is said apply to the Claimant. They apply also to most, if not all, individuals in receipt of exceptional case funding. This undermines the submission that the Claimant, as a victim of trafficking, was in a special position requiring her to be treated differently in terms of application of the statutory charge. The statutory charge has the potential to have a significant impact on any individual who has exceptional case funding. Being legally aided in that way is not “other status” for the purposes of Article 14.

Further, I have evidence of the legal aid assessment in the Claimant’s case. At the time of the assessment she had a monthly disposable income of £785.00 which meant that she was required to pay a monthly contribution of £81.06. She had modest capital in the sum of £2,496.88 i.e. just under the lower capital limit for a capital contribution. The evidence is of a litigant who had a modest income. For her to be in receipt of civil legal aid it could hardly be otherwise. She was not more than usually impecunious by the standards of legally aided individuals.

I was referred to R(Bibi) v Home Secretary [2015] 1 WLR 5055 which involved a challenge to the requirement in the Immigration Rules that the foreign spouse of a British citizen had to produce a certificate demonstrating knowledge of the English language prior to grant of entry, this requirement not applying to citizens of certain Anglophone countries. It was argued that there was a breach of the Article 8 rights of spouses who were citizens of other countries and that, in any event, the rule involved discrimination within the ambit of Article 8 so as to breach Article 14. The Supreme Court rejected the argument and concluded that the brightline rule was justifiable in this context. There was discussion in the judgments as to whether there ought to be some flexibility introduced into the Rules and whether the Court should make a declaration on the topic. In the event, no declaration was made. I do not find Bibi of any assistance in resolving the Claimant’s case.

The statutory charge has the potential to be of greater impact on legally aided individuals whose cases are difficult and complex and in consequence will involve greater expenditure by the provider in prosecuting their claims. This applies to victims of trafficking but also to others with exceptional case funding. I do not consider that there is any proper basis for concluding that the statutory charge has a disproportionate effect on victims of trafficking in particular.

Article 47 of the Charter of Fundamental Rights of the European Union is as follows:

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

The Claimant argues that the right provided for in Article 47 of the Charter goes beyond Article 6 of the ECHR. This proposition is not accepted by the Defendants. He relies on what was said in R(Gudanaviciene) v Director of Legal Aid Casework [2015] 1 WLR 2247 at paragraphs 57 to 59 of the judgment. I do not propose to rehearse the issue as set out in the judgment save to say that it supports the position taken by the Lord Chancellor in this case. Since I have already concluded that there was no breach of the Claimant’s rights under Article 6, that would mean that her position would be no different by reference to Article 47 of the Charter.

The argument put by the Claimant to justify a wider interpretation of Article 47 is that the proper construction requires effective access to an effective remedy. The term “effective” should be given its natural meaning i.e successful in producing a desired or intended result. The desired result in this case was recovery by the Claimant of the award made by the Tribunal. For it to be successful the Claimant had actually to receive that award. Thus, to ensure compliance with Article 47 there should have been exemption from the statutory charge as provided for in the Regulations. Reliance is placed on the explanations relating to the Charter which, although they do not have the status of law, are expressed to be a valuable tool of interpretation. The passage relied on is as follows:

With regard to the third paragraph, it should be noted that in accordance with the case law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy.

I reject the submissions made by the Claimant as to the effect of Article 47 of the Charter. The reference in the third paragraph to “effective access to justice” is not to be read back in conjunction with the first paragraph. The third paragraph, as is made clear by the explanation as cited above, is concerned with proper provision of legal aid in order to allow individuals properly to put their case. The first paragraph identifies that the right to an effective remedy is to be in compliance with the conditions laid down in the Article i.e. entitlement to a fair and public hearing in a reasonable time before an impartial tribunal with proper representation, such representation to be via legal aid where necessary. It does not amount to a requirement that the legal system of the state in question must ensure that the individual litigant will receive any award made by the tribunal. If this were the case, it would apply to any litigant. Article 47 applies to anyone whose rights are guaranteed by the law of the European Union. This is far wider than victims of trafficking. Indeed, it goes beyond those relying on breaches of Convention rights. Were it to be accepted the Claimant’s submission would involve an effective guarantee of large numbers of judgment debts. Neither the Charter nor the ECHR requires that result.

Directive 2011/36/EU was adopted on 5 April 2011. It relates to “preventing and combating trafficking in human beings and protecting its victims” as is set out in the title of the Directive. Article 12 of the Directive is headed “Protection of victims of trafficking in human beings in criminal investigations and proceedings”. On the face of it this provision is concerned with criminal proceedings. There is reference in Article 12 to “claiming compensation” but the context indicates that this is not a reference to a civil claim for damages. Recital 19 to the Directive does state that “victims of trafficking in human beings should be given access without delay to legal counselling and, in accordance with the role of victims in the relevant justice systems, to legal representation, including for the purpose of claiming compensation”. Based on this passage the Claimant argues that this provision is not restricted to criminal proceedings. It is said that in the context of a victim of trafficking the distinction between civil and criminal process is artificial. It is submitted that the Employment Tribunal is a vehicle provided by the United Kingdom to comply with Article 12 as explained in Recital 19.

This analysis does not sit easily with the judgment in Gudanaviciene (supra). One of the claimants in that case sought to establish that Article 12 provided a right to legal aid in order to apply for status as a victim of trafficking with the competent authority. The Court of Appeal rejected that proposition at paragraph 103 of the judgment.

In our judgment, the provision does not confer the right for which Mr Bowen contends. First, as is made clear by the heading to the article and by the content of the directly related recital (19), article 12 is concerned essentially with criminal investigations and proceedings. Whilst in that context it extends to claims to compensation (and the recital indicates that it also covers claims for compensation against the state), it is not a provision of general applicability. It has no application to the present case, which does not involve criminal investigations or criminal proceedings or (at least as regards the application for ECF) a claim to compensation. The process of referral to a competent authority to establish status as a VOT is an altogether different context.

Although it is argued on behalf of the Claimant that the judgment qualifies the reference to criminal proceedings by the use of the word “essentially” and refers to “a claim for compensation”, the judgment of the Court of Appeal is clear. The Article 12 of the 2011 Directive is concerned with criminal proceedings. It allows for the involvement of victims in those proceedings since they can be parties to criminal proceedings in civil systems as operate in most EU countries.

Insofar as it is said that Article 12 of the Directive renders the statutory charge unlawful, this proposition is misconceived. Article 12(2) requires legal representation to “be free of charge where the victim does not have sufficient financial resources”. This does not mean that there cannot be recoupment after the event if there is recovery sufficient to cover some or part of the legal costs incurred.

No article in the ECHR and no provision of EU law renders the statutory charge as it was applied to the Claimant unlawful and her claim for judicial review must fail. The circumstances in which she failed to receive any of the award made by the Employment Tribunal are extremely unfortunate. But they do not provide any basis for concluding that the exception to the statutory charge arose. In the course of argument it was said on the Claimant’s behalf that her Convention and/or Charter rights would have been satisfied if she had recovered at least a substantial proportion of the award. How great a proportion would have been necessary to satisfy those rights was not made clear. This proposition lacks any certainty. The reality is that the statutory charge is a brightline provision which applies to the Claimant.