England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Crane)

		Royal Courts of Justice Strand London WC2 Tuesday 4 December 2001

1. LORD JUSTICE SIMON BROWN: This is an application for permission to appeal the order of Mr Justice Crane dated 1 December 2000, by which he refused the applicant permission to apply for judicial review of the refusal, on 3 March 2000, of the Cardiff Area Committee of the respondent Board to grant him legal aid.
2. On 16 November 2001 the applicant wrote to the Court of Appeal office explaining that for various reasons (in part financial, in part referable to his wife's health) he would not be attending today's hearing and asking that the application be dealt with on paper. I indicated last week that I would consider the application on the documents and would deliver a brief judgment in open court today.
3. The essential background to this application is set out in Mr Justice Crane's judgment of 1 December 2000 and I shall not repeat it. Rather, I shall turn at once to deal with the essential point which Mr Justice Crane did not deal with, largely because the applicant did not attend the hearing before him and Mr Justice Crane, unlike me, did not have the advantage of Mr Munday's recent letter. What, above all, that letter seeks to emphasise is that Messrs Humphreys & Co, the solicitors whom the applicant now wishes to sue with the assistance of a legal aid certificate, were in error (the applicant would, I think, prefer to suggest were untruthful) in their letter of 9 December 1996 in stating:

"Unfortunately we do not have Legal Aid in order to discuss the points raised in your letter of 5 December 1996. We are therefore unable to comment on these."

4. Mr Munday's letter of 5 December 1996, I should explain, was a very detailed 11-page letter in which he took exception to leading counsel's opinion of 26 November 1996 expressing the view that Mr Munday's proposed action for damages against his previous solicitors would probably fail and that in those circumstances he could not advise that Mr Munday's legal aid be extended.
5. What happened after Humphreys & Co received counsel's opinion is conveniently to be found stated in the Legal Services Commission's letter of 25 May 2000 as follows:

"... on 9 December 1996 Messrs Humphreys and Co wrote to this office enclosing an unfavourable Leading Counsel's Opinion. The letter was addressed to the Bristol Area office, and was not received by ourselves until 16 December 1996. That was, of course, shortly before the Christmas holiday. At the same time Messrs Humphreys and Co applied to amend the certificates.

We refused those applications and issued a `show cause' letter on 3 January 1997, based on Counsel's unfavourable Opinion. That letter would have instructed Messrs Humphreys and Co not to carry out any further work under your legal aid certificate.

Following representations the show cause procedure was suspended on 13 January 1997, and the certificates amended to enable you to have a conference with Leading Counsel. On 16 January the certificates were further amended to enable proceedings to be issued.

However, following a report on the outcome of the conference with Leading Counsel, the show cause letter was re-issued on 7 February 1997. Again the show cause letter was based on Counsel's unfavourable Opinion. Again, your solicitors would have been under instructions not to carry out any further work under the certificate.

However, we received further representations from them regarding urgent steps which had to be taken in order to preserve your position, pending a decision being made on the future of the certificates. We authorised the solicitors to take further limited steps on 13 February 1997, but that was under the express understanding that the show cause letter (and therefore restriction on carrying out further work) remained in force, apart from the urgent action which the solicitors had sought authority to undertake. That action was to enable them to apply for an extension of time to serve the Statement of Claim. We wrote to Messrs Humphreys and Co to that effect on 17 February 1997."

6. That letter, Mr Munday says, demonstrates that in December 1996 Humphreys & Co were not operating under any restriction. So be it. That, frankly, is wholly insufficient for the applicant's purpose. Unless he could show that, had Humphreys & Co not then wrongly regarded themselves as under legal aid restriction, he would have had a reasonable prospect of persuading leading counsel to change his opinion and thereby have got legal aid to sue his original solicitors, he gets nowhere. That, to my mind, he cannot show. It is indeed clear to me that, on the suspension of the "show cause" procedure in January 1997, as explained in the Legal Services Commission's letter, the applicant had a clear opportunity at consultation with leading counsel to persuade him to change his opinion and he failed to do so.
7. In my judgment there is no sensible prospect whatever of Mr Munday advancing a successful appeal in this matter. I recognise that he will inevitably be disappointed by this decision, but, frankly, it is inconceivable that he could ever have mounted a successful judicial review claim here, let alone a successful claim for damages. This application is accordingly refused.
Order: application for permission to appeal refused.