The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2)

In a judgment handed down on 30 October 2019 (neutral citation: [2019] EWHC 2973 (QB)), I drew attention to an issue about the correct procedure for determining applications for legal aid by those facing applications in the High Court to commit them to prison for contempt because they have failed to comply with an order. As I indicated in that judgment, there is no real doubt that such individuals are entitled to legal aid. The question is who has power to grant it. The Legal Aid Agency (‘LAA’) says that it is the Director of Legal Aid Casework (‘the Director’), but this is contrary to what was said by Blake J in King’sLynn and West Norfolk BC v Bunning [2015] 1 WLR 531, a decision that has been followed or at least assumed to be correct in subsequent decisions of the High Court and Court of Appeal. I indicated at [28] of my earlier judgment that this ‘lack of clarity’ as to who has power to grant legal aid ‘creates a real problem for individuals like the Defendant who seek legal representation and for courts dealing with civil contempt cases’. I noted that the issue needed to be determined and invited the LAA to make submissions.

Mr Michael Rimer of the LAA filed helpful written submissions and also appeared on 8 November 2019 to make brief oral submissions. I accepted Mr Rimer’s assurance that Mr McKay is entitled to legal aid without the need for any assessment of his means or of the merits of his case; and that applications of this kind were normally determined within 48 hours. At the conclusion of the argument, I declined to make a representation order. I indicated, however, that I would set out my reasons in a reserved judgment. My reasons are as follows.

The availability of legal aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’). That distinguishes between civil legal aid (which is provided for in ss. 8-12) and criminal legal aid (which is provided for in ss. 13-20).

Regulation 9 of the Criminal Legal Aid (General) Regulations 2013 (SI 2013/9: ‘the General Regulations’) prescribes a long list of proceedings as criminal for the purposes of s. 14(h) of LASPO. At the end of this list, there is a catch-all provision in paragraph (v): ‘any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention of Human Rights’. This provision was presumably regarded as necessary to ensure compliance with the UK’s international obligations, given that under Article 6 ECHR certain procedural guarantees apply whenever a ‘criminal charge’ is being determined; that ‘criminal charge’ for these purposes has a meaning autonomous of the classification given by domestic law; and that committal proceedings, because their potential consequences include imprisonment, fall within that meaning: Hammerton v Hammerton [2007] 2 FLR 1133, [9] (Moses LJ).

Representation for criminal proceedings is governed by s. 16 of LASPO. That provides, insofar as material, as follows:

Section 17(1) of LASPO explains how the ‘relevant authority’ is to determine eligibility for legal aid. There are two tests that must be satisfied – the ‘means’ test (set out in s. 21 and regulations made under it) and the ‘interests of justice’ test. Both tests, however, may be deemed by regulations to be satisfied in certain categories of case: in relation to means, see s. 21(3); in relation to the ‘interests of justice’, see s. 17(4). In criminal proceedings other than those in the magistrates’ court or Crown Court, the relevant authority must make a determination that the individual’s financial resources are such that he or she is eligible: see reg. 39 of the Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013/471: ‘the Financial Resources Regulations’). So, the means test is automatically satisfied. Making representation available to an individual for the purposes of criminal proceedings is taken to be in the interests of justice when the proceedings are before the High Court (among other courts): see reg. 21 of the General Regulations. So, the ‘interests of justice’ test is also automatically satisfied.

Section 18 of LASPO deals with determinations by the Director, who is authorised by s. 18(1) to determine ‘whether an individual qualifies under this Part for representation for the purposes of criminal proceedings, except in circumstances in which a court is authorised to make a determination under regulations under section 19’.

Section 19 of LASPO deals with determinations by a court. It provides insofar as material as follows:

The combined effect of ss. 18 and 19 of LASPO is twofold. First, the Director has power to make a determination only where no court has such a power. Second, a court has power to make a determination only where authorised to do so by regulations made under s. 19.

The power conferred by s. 19(1) of LASPO has been exercised to make the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013/614: ‘the Determinations Regulations’). Part 2 of the Determinations Regulations deals with determinations by a court under s. 16 of LASPO. Regulation 4 provides as follows:

Mr Rimer accepted unequivocally on behalf of the LAA that criminal legal aid is available as of right to any person, such as Mr McKay, facing High Court committal proceedings for breach of an order. In the light of the statutory scheme as set out above, I have no doubt that he was correct to do so. To summarise the position:

Thus, the statutory scheme governing eligibility for legal aid properly recognises that the potential consequences of an application to commit (which include imprisonment) require that legal aid be available without any assessment of either the means of the applicant or the merits of the case (or the ‘interests of justice’ factors that would otherwise apply under s. 17 of LASPO when determining eligibility for criminal legal aid). That is so even when the application arises from civil proceedings in which legal aid would not otherwise be available.

But even in a case where the applicant qualifies for legal aid as of right (because he is a

The LAA’s position was – as I have said – helpfully summarised in Mr Rimer’s note. Essentially, because of the features of the Determinations Regulations identified in paragraph 11 above, for High Court committal proceedings for breach of an order, the

So far so good. The difficulty arises because of the decision of Blake J in the Bunning case, to which it is necessary now to turn. That case was heard soon after LASPO came into force. There was an application to commit for breach of an injunction made in civil proceedings in the High Court. The respondent had found it difficult to obtain legal aid because, at that time, the LAA had no established procedure by which applications for it could be made. The main uncertainty which Blake J set out to resolve is described by him in [2] of his judgment: ‘whether the contempt proceedings should be classified as civil proceedings and an application for exceptional funding made to the director of the LAA, or criminal proceedings where any application is to be made to the court’. This passage reveals an assumption – which in my judgment is critical to a proper understanding of the decision – that, if the proceedings are classified as criminal, the consequence is that any application for legal aid is to be made to the court, and not the Director.

Blake J heard submissions from the LAA, made by Mr Rimer. He made reference to s. 14(h) of LASPO and to reg. 9(v) of the General Regulations: [11]-[12]. He considered Article 6 ECHR and the Court of Appeal’s decision in Hammerton v Hammerton: [13][16]. He noted the deeming provision in reg. 21 of the General Regulations: [17]. He considered the definition of ‘specified individual’ in s. 16(6) of LASPO and of ‘relevant authority’ in ss. 18-20: [18]-[19]. He considered the terms of the

Three points can fairly be made about Blake J’s reasoning. First, there is the assumption to which I have already referred (in [2] of the judgment) that, if the proceedings are classified as criminal, the consequence is that any application for legal aid is to be made to the Court, and not the Director. The second – flowing from this assumption and evident in [24]-[25] of the judgment – is that reg. 7, which he noted did not appear to cover civil contempt proceedings other than for contempt in the face of the court, posed a problem or difficulty. The third – which appears from [29] – is that Blake J thought that, if the Determinations Regulations were read as preventing the High Court from making a representation order, that would conflict with the entitlement to legal aid of a ‘specified individual’ within the meaning of s. 16(1)(a) of LASPO. It was because of that conflict that, in [30], he felt obliged to interpret reg. 5 of the Determinations Regulations as empowering the court to make a determination even outside the cases specified in regs 6-8.

As I said in my earlier judgment, Bunning has been held, or at least assumed, to be correct by other courts. In Chelmsford County Court v Ramet [2014] EWHC 56 (Fam), [2014] 2 FLR 1084, Sir James Munby, President of the Family Division, had to consider a complaint of contempt arising from a violent attack by one party against another in court during a hearing. (The contempt proceedings had been transferred from the county court to the High Court.) As Sir James pointed out at [23] of his judgment, this was a contempt in the face of the court. At the end of his judgment (at [32]-[33]), he made some observations about legal aid, referring to reg. 9(v) of the General Regulations, Hammerton v Hammerton and Bunning, the analysis in which he commended to family judges and practitioners. There is no indication, however, that he heard argument on the question of who was the ‘relevant authority’. There was no reason for him to do so. His judgment does not, therefore, assist on that issue. I note in passing that, because Sir James did not have to consider the issue, he appears to have overlooked that contempt in the face of the court (unlike other contempts) is dealt with expressly in s. 14(g) of LASPO. That particular species of contempt is one of the types of proceedings covered by reg. 7(2)(a) of the Determinations Regulations, so in that

Next, there is the decision of the Court of Appeal in Brown v Haringey London Borough Council [2015] EWCA Civ 483, [2017] 1 WLR 542. That case concerned the availability of legal aid for contempt proceedings in the county court. At [3], however, McCombe LJ (with whom Richards and Lewison LJJ agreed), said this:

There is no doubt that the Court of Appeal did approve part of Blake J’s reasoning in Bunning. At [29], it expressly approved the conclusion that reg. 9(v) of the General Regulations covered proceedings for committal in the High Court. At [30], it held that an individual who may be brought before a court for contempt proceedings is a

H v T (Committal Appeal: Notices on Orders) [2018] EWHC 1310 (Fam), [2018] 4 WLR 122 was an appeal from a decision of a recorder imposing a suspended custodial sentence for breach of an order made in proceedings in the Family Court. Baker J (as he then was) initially made a representation order, following Bunning and Ramet, but giving the LAA permission to apply to vary or discharge it. The LAA duly applied for discharge on the basis that it, and not the court, was the ‘relevant authority’ under s. 16 of LASPO: [43]. In the event, the LAA agreed that the discharge of the order should be contingent upon the Director granting the respondent legal aid for the appeal: [44]. In those circumstances, the order was discharged, but Baker J nonetheless invited submissions from the LAA, which were again made by Mr Rimer: [45]. Mr Rimer made the same submissions to Baker J as he has made to me. These included the submission that Bunning was wrongly decided and that there was nowc an ‘established procedure’ as described in [15] above: [46]. Baker J did not find it necessary to decide the point, noting that Bunning had been approved in Ramet and that ‘[i]f the Legal Aid Agency wishes to challenge that line of authority, I respectfully suggest that it must identify a suitable case in which to do so’: [47].

Finally, and very recently, in O (Committal: Legal Representation) [2019] EWCA Civ 1721, Peter Jackson LJ (with whom Moylan LJ agreed) noted as follows at [2]:

As I indicated at the start of this judgment, I have concluded that the identity of the ‘relevant authority’ in a case of this kind does now need to be determined. Either it is the Court, or it is the Director. It is not satisfactory in the long-term for there to be a discrepancy between the position as declared by the courts and the declared practice of the LAA.

The first question is whether it is now open to me to depart from Bunning, given that it has been held or assumed to be correct by other courts, including the Court of Appeal. I have concluded that none of the subsequent cases prevents me from departing from Bunning. Ramet concerned a contempt in the face of the court, which is covered by different statutory provisions; and in any event, the identity of the ‘relevant authority’ was not in issue: see [19] above. The Court of Appeal in the Haringey case, though it approved part of Blake J’s reasoning in Bunning, did not consider the identity of the relevant authority to determine applications for legal aid in High Court committal proceedings for breach of an order: see [21] above. Insofar as it is relevant at all, it is consistent with the proposition that the proceedings described in regs 6-8 of the Determinations Regulations are the only ones in which the court is the relevant authority. H v T plainly does not stand in the way of a first instance court departing from Bunning; on the contrary, Baker J in that case invites the LAA to identify a suitable case in which to test the point. O (Committal: Legal Representation) does not consider the identity of the ‘relevant authority’ at all.

It follows that none of the subsequent cases prevents me from departing from Blake J’s conclusion in Bunning that the court is the ‘relevant authority’ to determine eligibility for legal aid in High Court contempt proceedings alleging breach of an order. Since it is the carefully reasoned decision of a High Court Judge, I should not do so unless convinced that it is clearly wrong. In the light of my analysis of the statutory scheme, however, I am so convinced. Given what I have said above, I can explain my reasons briefly.

Section 16(1) of LASPO makes clear that being a ‘specified individual’ is a necessary but not a sufficient condition for entitlement to legal aid. Even when the applicant is a ‘specified individual’ there must still be a ‘determination’ by the ‘relevant authority’. Section 16(6) and ss. 18-20 make clear that this may be either the Director or the Court. So, the statute specifically contemplates applications for criminal legal aid where the

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. As Mr Rimer confirmed, the LAA now has an established procedure. Given that legal aid for proceedings of this kind does not require any assessment of either means or merits, one would expect that procedure to be capable of resulting in a determination very quickly. Mr Rimer’s note indicated that this was so in practice. In those circumstances, this decision should not make it any more difficult to obtain legal aid for those facing High Court committal proceedings for breach of an order, though the procedure will be different from that outlined in Bunning. In the light of my conclusions, applications for legal aid in such proceedings should be made to the Director, not the court.