“THE STATE HAS SIMPLY WASHED ITS HANDS OF THE PROBLEM, LEAVING THE SOLUTION… TO THE GOODWILL, AND CHARITY, OF THE LEGAL PROFESSION”

Every sensible citizen should read the judgment of Sir James Munby in M v P [2019] EWFC 14.   It is a classic case of the government creating a problem and leaving the victims unsupported (whilst it employs a formidable legal team of its own).

“The ultimate safeguard for someone faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment”

THE CASE

A couple had divorced in 2013 on the grounds they had been living apart for more than 24 months.  The application was issued by a litigant in person. None of the court staff or judges who took the steps leading up to the divorce noted that the couple had, in fact, only been living apart for 22 months. The problem was noted in 2016. The matter was referred to the judge.  The judge validated the divorce. However he noted that both parties were not English speakers, legal aid had been refused and one of the parties had pro bono representation.

A STORMING JUDGMENT

    1. As I have already mentioned, P sought and was refused exceptional funding by the Legal Aid Agency. This was because, as it was put in the decision letter dated 28 February 2019, her disposable income had been assessed at an amount which made her ineligible for legal aid. In her application for legal aid, she had set out her aggregate monthly income as £2,674.70, the relevant deductions as £2,233.57 and her disposable monthly income (aggregate income less such items as PAYE and NI, housing costs and various expenses) as £441.13. These figures were re-assessed by the Legal Aid Agency as, respectively, £2,694.13, £1,113.26 and £1,580.87. The major alteration, the reduction in the assessed amount of the relevant deductions, was the result of the Legal Aid Agency capping in the sum of £545 her actual housing costs of £1,500, on the basis that she has no dependants. The upper limit for aggregate income is £2,657 and the upper limit for disposable income is £733. An applicant for legal aid becomes financially ineligible for legal aid if either limit is exceeded. So P would in any event have been ineligible because her aggregate income exceeded the upper limit by, on the Legal Aid Agency’s figures, £37.13. I should add that her disposable capital of £30.17 fell very significantly short of the upper capital limit of £8,000.
    2. I do not criticise the Legal Aid Agency which was, no doubt, operating within the confines of a system imposed on it by others. But the idea that someone with an available net monthly income of £625.87 (the amount if one takes the actual rather than the notional amount of her rent: £1,580.87 – (1,500 – 545) = £625.87) and, for all practical purposes, no capital has the means to fund litigation of this kind is, to adopt a phrase used by Frankfurter J in United States v Dege (1960) 364 US 51, page 53, “unnourished by sense.” Nor is it immediately obvious why someone whose disposable income is so low should be denied legal aid because their aggregate income exceeds some artificial limit, let alone when it does so by a sum as trivial as £37.17. After all, P, like all of us, has to live on what is left after payment of PAYE and NI (deducted, of course, at source) and the costs of housing.
    3. What ought also to be obvious to anyone with an ounce of common sense and understanding of forensic realities is that no lay person in the position of either P, or for that matter M, could possibly be expected to argue a case of this legal complexity, and this even if English was their native tongue.
    4. What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created to the goodwill, the charity, of the legal profession. For what brought this matter to court was, to repeat, failures, mistakes, by the State, by the court system, and, specifically by judges. Moreover, the application has been mounted by an officer of the State, the Queen’s Proctor. Yet the State has declined all responsibility for ensuring that P is able to participate effectively in the proceedings. I make as clear as possible that in saying this I intend not the slightest criticism of the Queen’s Proctor, who has acted throughout with complete propriety and, moreover, with conspicuous concern for the predicament in which P and M find themselves. Indeed, the Queen’s Proctor, having discussed the point with the court, very properly took the highly unusual step of writing to Messrs Duncan Lewis a letter to assist with P’s application for legal aid in this case. Yet the situation is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that hapless individuals like P and M, victims of the State’s failings, are able to obtain justice? Or is society in the twenty-first century content with the thought, excoriated well over a century ago by Matthew LJ, that justice, like the Ritz, is open to all? It is deeply wrong and potentially most unfair that legal representation in a case like this, where it is a vital necessity, is available only if the lawyers, as here, agree to work for nothing.
    5. Were I to cite all the cases in which similar comments have been made by judges in recent years, I fear that this already lengthy judgment would be unduly lengthened. I confine myself to a reference to what Williams J has very recently said in Re R (A Child: Appeal: Termination of Contact) [2019] EWHC 132 (Fam), para 13:
“I would like to extend my thanks to counsel and to the team who assisted the mother at court. That counsel for the father and for the mother should appear pro bono in such a complex case as this is in the finest traditions of the legal profession. Up and down the country, counsel, solicitors and legal executives fill the gaping holes in the fabric of legal aid in private law cases because of their commitment to the delivery of justice. Without such public-spirited lawyers how would those such as the father and mother in this case navigate the process and present their cases? How judges manage to deliver justice to the parties and an appropriate judgment for the child without such assistance in cases like this begs the question. It is a blight on the current legal aid system that cases such as this do not attract public funding. So far removed from the stereotyped ‘fat-cat,’ the legal profession in cases such as this are more akin to Boxer in George Orwell’s ‘Animal Farm’ always telling themselves “I will work harder.””
I respectfully agree with every word of that.
  1. The ultimate safeguard for someone faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. So the role of specialist family counsel, and of the specialist family solicitors who instruct them, is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work. There can be no higher call on the honour of the Bar than when one of its members is asked to act on behalf of a client facing the might of the State. The Bar, I am sure, will never fail in its obligation to stand between Crown and subject. And the same of course goes for the solicitors’ profession. But there is something profoundly distasteful when society, when Government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the State is so conspicuously unwilling to do or to provide for.
  2. In the circumstances the least I can do is to acknowledge with my thanks the professional dedication, commitment and sense of duty so conspicuously shown by Ms Budwal and Mr Nuttall of Messrs Duncan Lewis, and by Ms Bazley and Ms Dunseath. Too often in these circumstances the work of the solicitors, barely visible behind the scenes, is overlooked. P paid the firm a modest fee for their help in preparing her statement of 30 January 2019. But thereafter the firm worked for her pro bono Here it is important to record that, quite apart from all their work in instructing Ms Bazley and Ms Dunseath, Ms Budwal and Mr Nuttall worked pro bono in the fruitless attempt to obtain public funding.