COMMITTAL PROCEEDINGS: LEGAL AID IS AVAILABLE WITHOUT ASSESSMENT OF MERITS OR MEANS: BUT WHERE DOES A RESPONDENT OBTAIN REPRESENTATION (LOOK HERE I HOPE)
The problems caused by civil committal proceedings have been a constant theme on this throughout the year (and for some time before). The problems may be reduced, to some extent, by the judgment of Mr Justice Chamberlain in The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2)  EWHC 3065 (QB). Legal aid is available, without a financial or merits test, for anyone charged with contempt in the High Court. Here we look at that judgment and I am attempting to set up a “resource” page here with links to solicitors who are willing and able to take up such cases.
“Since May 2015, there has been a ‘clear established process’ for applications for legal aid in civil contempt proceedings (including High Court proceedings) in which the Director is the ‘relevant authority’. Applications are to be made using the CRM14 form, which is available on the LAA website or via its E-form portal. Such applications are processed by the National Crime Team in the LAA’s Nottingham office. The majority are processed within 48 hours of receipt and there is a facility to indicate that an application is urgent.”
An application was made to commit the respondent to prison. There was an issue as to how the respondent could obtain legal aid. Some cases indicated that it could be ordered by the judge, the Legal Aid Agency stated it was by the agency itself.
1.In a judgment handed down on 30 October 2019 (neutral citation:  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’s Lynn and West Norfolk BC v Bunning  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  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.
LEGAL AID IS DEFINITELY AVAILABLE
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:
(a) the proceedings involve the determination of a criminal charge for the purposes of Article 6(1) ECHR: Hammerton v Hammerton, ;
(b) therefore, they are prescribed as ‘criminal proceedings’ for the purposes of s. 14(h) of LASPO by reg. 9(v) of the General Regulations;
(c) therefore, criminal legal aid is to be available if the means tests and ‘interests of justice’ test are met: s. 16(1) of LASPO;
(d) in relation to criminal proceedings before the High Court, both tests are met automatically: reg. 39 of the Financial Resources Regulations (in relation to means) and reg. 21 of the General Regulations (in relation to ‘interests of justice’);
(e) so, legal aid is available as of right.
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.
DEALING WITH THE PRE-EXISTING CASE LAW
The judge considered the pre-existing case law that indicated that a judge was the appropriate authority to grant legal aid. He held that he was able to depart from those earlier decisions.
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  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  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.
The judge, therefore, declined to grant legal aid – but on the basis that he was not the relevant authority and that this would be granted by the LAA.
(a) As the LAA accepts, a respondent to High Court committal proceedings alleging breach of an order (such as Mr McKay) is entitled to legal aid as of right (i.e. without any assessment of his means or of whether it is in the interests of justice for representation to be provided): see  above.
(b) But it is a separate question who is the ‘relevant authority’ responsible for determining eligibility for the purposes of s. 16 of LASPO. In High Court committal proceedings alleging breach of an order, the ‘relevant authority’ is the Director of Legal Aid Casework, not the court. Insofar as it reached the contrary conclusion, King’s Lynn and West Norfolk Council v Bunning was wrongly decided: see  above.
(c) This should have no practical effect on the availability of legal aid because the LAA has an established procedure (described in  above) for determining applications expeditiously in cases of this sort. Litigants and providers of legal services should be encouraged to use this procedure and should not now apply to the High Court for representation orders: see  above. (The position in the Court of Appeal is different: there, the court is the ‘relevant authority’ and the application should be made to the court.)
THE ESTABLISHED PROCEDURE
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 ‘relevant authority’ is the Director; whereas in similar proceedings in the Court of Appeal, the relevant authority is the court. Since May 2015, there has been a ‘clear established process‘ for applications for legal aid in civil contempt proceedings (including High Court proceedings) in which the Director is the ‘relevant authority’. Applications are to be made using the CRM14 form, which is available on the LAA website or via its E-form portal. Such applications are processed by the National Crime Team in the LAA’s Nottingham office. The majority are processed within 48 hours of receipt and there is a facility to indicate that an application is urgent. Applications can be made by any legal services provider holding a Standard Crime Contract or (now), in a case where the alleged contempt arises in publicly funded civil proceedings, by a firm holding a Standard Civil Contract. The mechanics of applying are explained in a note on the LAA’s website, which is available at www.gov.uk/guidance/apply-for-legal-aid-for-civil-contempt-cases.
SO WHERE DOES A RESPONDENT FIND HELP? HERE (I HOPE)
The legal services provider must hold a standard criminal or civil contract. I know (because there have been issues on this arising from posts on this blog in the past) that people have had major difficulties finding a solicitor able to help.
It may be useful for any solicitors who are willing and able to provide these services to put their details on the comments section of this blog. I will then move them to this section. All that is required is:
- Name of firm.
- Contact details.
- Link to firm’s website (if relevant).
- Geographical area covered.
DETAILS OF FIRMS AVAILABLE TO HELP
Remember that the list does not constitute a recommendation from me, or anyone. It is simply a list of those solicitors who are able to obtain legal aid in these circumstances and who state that they are willing to do so.
LEVINS SOLICITORS: NORTH WEST ENGLAND AND NORTH WALES
The Willows, 2 Rupert Road, Huyton, Liverpool L36 9TF
T: 0151 480 5777
The best contact email address is email@example.com.
BROUDIE JACKSON CANTER (LIVERPOOL, MANCHESTER, NORTH WALES)
Name of firm – Broudie Jackson Canter
Contact details – Nina Patel – 0151 227 1429
Email – firstname.lastname@example.org
Address – 3rd Floor Walker House, Exchange Flags, Liverpool, L2 3YL
Link to firm’s website (if relevant) – http://www.broudiejacksoncanter.co.uk
Geographical area covered – Liverpool, Manchester, North Wales
WATSON WOODHOUSE (NORTH EAST)
Watson Woodhouse Limited are based in Middlesbrough with offices in Darlington; Northallerton; Harrogate; Redcar; Stockton and London – and can cover the North East (Teesside Court listings) for contempt cases. (Sarah Magson)
LONDON: BURKE NIAZI
Firm: Burke Niazi Solicitors
Contact: Michael Barrett (email@example.com)
SCOTT MONCRIEF: LONDON AND SOUTH EASTERN CIRCUIT
- Name of firm. – Adam Tear at Scott-Moncrieff
- Contact details. firstname.lastname@example.org or 020 3972 9011
- Link to firm’s website (if relevant). scomo.com or adamtear.com
- Geographical area covered. – London and south eastern circuit
WALDRONS: WEST MIDLANDS
We cover the West Midlands, from Stoke down to Worcester and Coventry.
WTB SOLICITORS: MANCHESTER – NORTH WEST ENGLAND (WILL COVER THE WHOLE OF NORTH OF ENGLAND -AT A PUSH)
Name of Firm: WTB Solicitors
Contact Details: Ben Taylor
Address: WTB Solcitors LLP, 601 Stockport Road, Longsight, Manchester M13 0RX
Coverage: North West England
PS: Tel: 0161 224 3311
Will cover whole of North of England at a push