COURT IN THE MIDDLE? CIVIL COMMITTAL PROCEEDINGS AND LEGAL AID: JUDGE EMPHASISES THE COMPLEX MESS ABOUT FUNDING

There have been concerns in the past about the way in which civil committal proceedings are carried out.  A guide to the careful approach needed is shown in the judgment of Chamberlain J in  The All England Lawn Tennis Club (Championships) Ltd & Anor v McKay [2019] EWHC 2901 (Admin).  More significantly the judgment highlights the total confusion that exists about legal aid in committal proceedings.

“there is a serious lack of clarity about how to go about making an application for legal aid for representation in respect of a committal for breach of an order made in civil proceedings”

“the authorities I have mentioned provide ample support for the proposition that even lawyers, never mind litigants in person, may find it difficult to understand how to go about obtaining legal aid in cases like this”

THE CASE

The claimants applied to commit the defendant to prison for contempt of court, it is alleged that he sold tickets for tennis matches at Wimbledon in breach of an interim injunction.

THE APPLICATION TO COMMIT

The defendant did not attend the application to commit. A medical note was sent.  He had previously indicated that he wanted the judge to grant legal aid.

THE JUDGMENT

The judge set out the history of the application and the fact that the defendant had not attended in the morning.

    1. On 27 August 2019, the Defendant wrote to Ms Shaw in these terms: ‘I’m sorry but it is not in my interest to sign a statement of truth – without sound legal representation.’ He continued, inviting Ms Shaw to ‘please take me back to court’ where he would ‘ask the judge to grant me legal aid’.
    2. There was no further communication until 5 September 2019, when the present application was issued to commit the Defendant to prison for breach of the Order. With the permission of Master Eastman, that application was personally served on the Defendant on 24 September 2019, when the Defendant attended a hearing before the Master of the Claimants’ application for default judgment against him.
    3. Prior to the hearing at 10.30am today, I caused an email to be sent to the parties inviting submissions from both parties on three questions:
‘(a) whether the court has power to make a representation order under s. 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013/614); (b) whether the court should exercise that power; (c) if so, what directions should be given to enable representation to be sought’
I drew attention to three authorities, which I shall consider in greater detail in a moment.
    1. The Defendant did not appear at 10.30am today. I was told by Mr Rowntree, who appears for the Claimants, that his instructing solicitor had contacted the Defendant by telephone and the Defendant had said he would not be attending, but a friend would bring a letter explaining why. A man saying he was the Defendant’s friend appeared with a letter addressed ‘To whom it may concern’ and gave it to those representing the Claimant. The letter was apparently from a Dr D. Patel of the Cator Medical Centre in Beckenham and purported to be about the Defendant, whom it identified by name, date of birth address and mobile telephone number:
‘The above patient who is registered at our practice is under review with ongoing mental health issues of low mood, agoraphobia and panic. He is currently receiving medication for this and tells me that he finds it hard to leave the house and travel due to his symptoms. I would be grateful if you would take this into account with his upcoming court hearing.’
    1. Mr Rowntree invited me to issue a bench warrant for the Defendant’s arrest. I indicated that I would not do so immediately, but instead would put the case back to 2pm, inviting Mr Rowntree’s instructing solicitors to communicate to him by telephone and email that his attendance was required, that I would consider issuing a bench warrant if he did not attend and that it was in his interests to attend because among the issues I wished to consider was whether I should make a representation order to enable him to be represented and if so what further directions I should give to enable the committal application to be dealt with at a later date once he had obtained representation. I made clear that I had considered the letter handed to the Claimants’ representatives today but that that letter did not give sufficient detail about the Defendant’s condition to enable me to reach the view that it would be detrimental to his mental health to proceed with the hearing and also did not give any details about his prognosis, which would enable me to decide how to deal with this matter going forward.
    2. The Defendant did not appear at 2pm and Mr Rowntree showed me an email and WhatsApp messages sent to him summarising what I had said.
    3. In deciding how to proceed today, I have borne in mind in particular two decisions of the Court of Appeal. In the first, Haringey v London Borough Council [2017] 1 WLR 542, the Court allowed an appeal against a committal order made at a hearing in the county court at which the Defendant had not been represented. McCombe LJ (with whom Richards and Lewison LJJ agreed) noted at [39] that the right to a fair trial at common law and under the ECHR was squarely engaged on any application to commit an individual to prison and that legal aid was in principle available. On the facts, the order had been made after a hearing which suffered from a serious procedural irregularity and was therefore set aside.
    4. Very recently, in O (Committal: Legal Representation) [2019] EWCA Civ 1721, the Court of Appeal allowed an appeal from a High Court committing the appellant to prison for breach of an order. At [2], Peter Jackson LJ (with whom Moyland LJ agreed) said this:
‘The case is a reminder that respondents to committal proceedings are entitled to be provided with legal representation if they want it and that they will qualify for non-means tested legal aid. There is an obligation on the court to ensure that this protection is available. Where this does not happen any resulting order for committal may be procedurally irregular.’
    1. As I have said, Ms Shaw of Kermans has very commendably taken the trouble to explain to the Defendant, on a number of occasions, that he should seek legal assistance and has helpfully pointed him in the direction of places where he might obtain it. She is not to be criticised in any way. However, the authorities I have mentioned indicate that there is a serious lack of clarity about how to go about making an application for legal aid for representation in respect of a committal for breach of an order made in civil proceedings.
    2. The uncertainty arises in the following way. Section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that legal aid for the purposes of criminal proceedings is to be available to an individual if he is a ‘specified individual’ and ‘the relevant authority’ has determined that he qualifies for representation. There is no doubt that an individual facing proceedings for committal for breach of a civil order is a ‘specified individual’. This is because, although only one type of contempt proceedings (contempt in the face of the court) is specified in s. 14 of the 2012 Act, civil contempt proceedings are treated as criminal for the purpose of Article 6(3) of the ECHR and proceedings so treated are treated as criminal by reg. 9(v) of the Criminal Legal Aid (General) Regulations 2013.
    3. The real issue is not whether legal aid is available, but who has the power to grant it: the court or the Legal Aid Agency. Regulation 7 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 governs determinations by the High Court. Looking at that regulation on its own, the reader might well conclude that the High Court’s power to make a determination that a person is entitled to legal aid arises only in the cases there set out, which do not include contempt proceedings for breach of a civil order. However, in King’s Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531, Blake J held – accepting submissions made to him on behalf of the LAA and having considered the statutory scheme in considerable detail – that reg. 7 does not preclude the High Court from making a determination in such a case. That decision was followed by Sir James Munby, President of the Family Division, in Chelmsford County Court v Ramet [2014] 2 FLR 1084; and it was at least assumed by the Court of Appeal to be correct in Brown.
    4. In H v T (Committal Appeal: Notice on Orders) [2018] 4 WLR 122, Baker J recorded submissions made to him by the Legal Aid Agency that Blake J’s conclusion in Bunning (expressly accepting submissions made to him by Agency) was wrong; and it was the Agency, not the court, which had power to make legal aid determinations in contempt proceedings for breach of a civil order. He did not in the event have to determine that question.
  1. The current situation presents two problems. The first is that the Defendant has clearly indicated his wish to be represented. He claims to have sought representation and been unable to obtain it. I am in no position to make findings about why, but the authorities I have mentioned provide ample support for the proposition that even lawyers, never mind litigants in person, may find it difficult to understand how to go about obtaining legal aid in cases like this. Both Blake J in the King’s Lynn case and McCombe LJ in the Haringey case expressed the hope that improvement would be made to the drafting of the legislation to make it clearer who has the power to make legal aid determinations in civil contempt cases. No such improvements have been made. Instead, it would appear that the Legal Aid Agency now contends that the submissions it made to Blake J (and which were accepted by him) in the King’s Lynn case were wrong. The lack of clarity creates a real problem for individuals like the Defendant who seek legal representation and for courts dealing with civil contempt cases. I consider that the issue needs to be determined and I am minded to give directions for a hearing, on notice to the Legal Aid Agency, to determine it.
    1. The second problem, however, is that the Defendant can only benefit from legal representation if he is prepared to engage with legal representatives and the court. As I have said, the doctor’s letter handed up today provides no satisfactory basis for concluding that it would be inappropriate to proceed with the current hearing. Quite apart from the fact that there has been no communication direct from the Defendant attesting to the authenticity of the letter, and even allowing for well-known the pressures on GPs, it does not in any event satisfy the guidance given by Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch) at [36] and expressly approved by the Court of Appeal in Forresters Ketley v Brent [2012] EWCA Civ 324:
‘The medical evidence required to demonstrate that a party is unable to attend a hearing and participate in the trial . . . should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all resultant recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition, which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is independent opinion after proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).’
I have also borne in mind the comments of King LJ (with whom Lloyd Jones LJ agreed) in Emojevbe v Secretary of State for Transport [2017] EWCA Civ 934, which is referred to in the White Book at p. 1253. Even making due allowance for the pressures on busy GPs, Dr Patel’s letter does not say that it would be impossible for the Defendant to attend court, nor that it would be detrimental to his mental health if he did so, nor does it identify the particular features of the Defendant’s condition which would make attendance difficult so as to enable the court to form a view about whether measures short of an adjournment could be put in place to alleviate those difficulties. More importantly it gives no prognosis which would enable the court to make directions for the hearing of the application at a later date.
    1. In my judgment the proper way to accommodate and address these two problems is to make the following directions:
(1) that this application be adjourned to be listed before me at 10.30am on Friday 8 November;
(2) that the Legal Aid Agency be notified of the hearing and of this judgment and invited to attend to make submissions on the question whether the court has power to make a legal aid determination in the Defendant’s favour;
(3) that the Defendant must attend the hearing or by 4pm on Wednesday 6 November 2019 file at court and serve on the Claimants’ solicitors evidence in writing from a medical practitioner:
a. giving details of the practitioner’s familiarity with the Defendant’s medical condition (detailing all resultant recent consultations);
b. identifying with particularity what the patient’s medical condition is and the features of that condition, which (in the medical practitioner’s opinion) would prevent participation in the trial process; and
c. providing a reasoned prognosis.
  1. I should make it very clear at this stage that, if the Defendant does not comply with direction (3) above, it is likely (subject of course to anything that emerges between now and then) that that a bench warrant will be issued authorising his arrest.