England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2
		Monday, 23rd July 2001

1. MR JUSTICE OUSELEY: This case concerns the lawfulness of the imposition by the Legal Services Commission (the defendant) of an embargo on work being done under a full legal aid certificate before the discharge of the certificate under the Legal Aid Act 1988 and the Regulations of 1989 made thereunder. The effect of the embargo in this case, imposed because the claimant was considered unreasonably to have refused an offer of settlement made very shortly before trial, was to leave the claimant unrepresented at that trial. Permission to apply for judicial review was granted on a renewed oral application.
2. In the summer of 2000 the student was a law student at SOAS, in his final year. He was also the claimant in a personal injury action brought against his former employers for operating an unsafe system of work at the hospital where, in 1996, he was employed as a security guard. This had led to an assault on him by a psychiatric patient.
3. A full legal aid certificate was granted in July 1998 and on 18th April 2000, after the claimant had rejected a CPR part 36 offer, his legal aid certificate was amended to cover all steps up to and including trial.
4. The personal injury claim was proceeding on the fast track in the Lambeth County Court. The trial was listed for 8th June 2000. On 1st June 2000 his ex-employers made an offer to settle for £10,000 and threatened that if that offer were not accepted they would be writing to the Legal Aid Board asking for the claimant's certificate to be discharged. The claimant rejected that offer against the advice of Bindman & Partners, his then solicitors, who warned him that if the ex-employers' solicitors did indeed write to the Legal Services Commission, the Commission might embargo any further work being done on his behalf under his legal aid certificate and might require him to show cause why the legal aid certificate should not be discharged.
5. On 5th June 2000 the claimant rejected for the second time the offer of £10,000. This was against the firm advice in conference of his solicitors and counsel. On that same day his solicitors, as they had warned him that they would have to do, telephoned and then sent a fax to the Legal Services Commission stating that this refusal of the offer of settlement was "unreasonable in all the circumstances".
6. The Legal Services Commission, over the telephone, put an immediate embargo on the claimant's solicitors doing any further work, as his solicitors had indeed warned would happen. On the evening of 5th June 2000 the claimant received a letter by courier from his solicitors explaining that he had been advised in the strongest possible terms to accept the offer of £10,000. The letter said:

"You were advised by both Jonathan Glasson and me that we could not recommend that the case proceed to trial and that we both had a duty to the Legal Services Commission to inform them that in our opinion the case should not proceed to trial and that your instructions to reject the offer were unreasonable. There is no reasonable prospect that if the case went to trial you would be awarded damages in excess of the offer.

My duty to the Legal Services Commission is such that I was obliged to inform them that a reasonable offer had been made and that since you had rejected it the case should not proceed to trial. The Legal Services Commission has placed an immediate embargo on any further work. Neither counsel nor I is allowed to do any further work on your case. We are not allowed to represent you at trial on Thursday."

7. The solicitors did say that they would not tell the court or the defendant of the position until the next day to give the claimant the chance to reconsider his position. The letter concluded:

"At the same time I will send you the trial bundles. You can then decide either to represent yourself or to pay privately for legal representation. It may be necessary to obtain an adjournment of the trial to enable you to do so. If the Court allows an adjournment you may well be penalised in costs for the defendant's wasted time."

8. The next day the claimant was told by his solicitors that the only issue at the trial would be the quantum of damages as liability had now been conceded by his ex-employers. Liability had not been regarded as an issue upon which the claimant had had any real prospects of losing.
9. On 6th June 2000 Bindman & Partners wrote to the claimant pointing out, correctly:

"Although an embargo has been placed on further work, your legal aid certificate remains in force and this means that I am still your solicitor. No other solicitor can therefore act for you in this matter until the certificate is discharged. This means that you will have to represent yourself at the trial.

I am not able to release all the original papers in your file because they will be needed for assessment of costs."

10. Bindman & Partners had told the court that the claimant would not be represented. The fact that the legal aid certificate was not discharged also had the effect, but of no more than theoretical relevance here, that not merely could the claimant not instruct other solicitors who might be willing to forego payment in advance, but he could not pay Bindman & Partners to do embargoed work if he had, for example, found a relative willing to assist. However, the statutory legal aid charge remained in place to cover the full extent of any additional sums which he actually recovered through his own efforts after the embargo had been imposed. That is not theoretical because on 8th June 2000 the claimant accepted an offer at court of £15,000 plus costs.
11. In his witness statement the claimant states that he was disadvantaged in these negotiations at court because of a lack of procedural awareness and because he had not been able to secure copies of documents which he said the other side ought to have disclosed. He had had little time to prepare himself for trial and for trial advocacy.
12. The claimant had no direct contact with the Legal Services Commission until after his case was over. On 9th June 2000 he received two letters from the Legal Services Commission. The first, dated 5th June and sent on 7th June 2000, stated:

"You have failed to accept an offer of a full legal aid certificate. If I discharge the certificate, it is cancelled and your case will no longer be publicly funded.

Until I make our decision, no more work can be done under the certificate unless it has first been approved by me."

13. This letter was admitted by the Legal Services Commission in these proceedings to have been sent in error. The second letter, dated 7th June, said that it had been decided that the certificate should remain in force. This too was sent in error. The cancellation at the Legal Services Commission of the first erroneous letter caused the computer to generate the programmed letter appropriate for the removal of the first letter, had it been correctly sent in the first place.
14. However, the Legal Services Commission, by a third letter, and the second one dated 7th June 2000, said:

"Your case has been reviewed in the light of the settlement proposals which have been made and it is considered that a fee paying client of moderate means would be advised to settle. If I discharge the certificate, it is cancelled and your case will no longer be publicly funded.

Until I make our decision, no more work can be done under the certificate unless it has first been approved by me."

15. The claimant subsequently wrote to the Legal Services Commission on three occasions in June 2000 asking for full reasons as to why the certificate had been embargoed so soon before trial. However, he knew the essence of the reasoning because of what his solicitors had told him which was also reflected in the Legal Services Commission's second letter dated 7th June 2000.
16. In a letter dated 26th June 2000 the Legal Services Commission stated:

"I can do no better than provide you with a copy of a letter received from your solicitors in this case dated 5th June 2000, which clearly states that both your solicitor and your barrister had advised you to accept the sum of £10,000 offered by the Defendants in settlement of your claim. It appears that you were not prepared to take this advice and thus it was reasonable for the Legal Services Commission to embargo the Funding Certificate notwithstanding the fact that trial was approaching. You appear to have been asking for the case to proceed in such a way and against your solicitors' instructions as to cause unjustifiable expense to the Legal Aid Fund."

17. On that same day the legal aid certificate was discharged. Subsequent correspondence elicited no further information but it is not obvious what more in substance there was to say.
18. The claimant contends in these judicial review proceedings that the Legal Services Commission had no power to impose an embargo at all, and that if it did, it had failed to do so fairly because the claimant had a legitimate expectation that legal aid would be available for the trial. It could not be embargoed without the Legal Services Commission giving him the opportunity to explain why the embargo should not be imposed. The claimant also contends that the decision of the Legal Services Commission to impose the embargo was irrational and made in ignorance of material considerations.
19. The Legal Services Commission takes issue with all those contentions but additionally submits that the application for judicial review should not be heard or decided because the case was futile or entirely academic.
20. I shall deal with that issue first. Mr Andrew George, for the defendant Legal Services Commission, submits that the proceedings are futile because relief cannot be of any benefit to the claimant because his personal injury action has been concluded. Insofar as he has a valid claim in private law for damages, a suggestion which the defendant strongly resists, that can and should be dealt with simply as a private law claim. Mr George submitted that even an appropriately framed declaration would not necessarily lead to an issue estoppel, that there would inevitably be arguments over what statutory duty or what duty of care arose and whether it had been breached, and he therefore submitted that the public law claim had no relevance to any private law action. In this context he referred to a passage in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, Fifth Edition 1996, at page 761:

"Holding a decision to be unlawful does not involve a finding that it was taken negligently; a decision without legal authority may nevertheless have been the product of very careful consideration by a decision-maker. Unlawfulness (in the judicial review sense) and negligence are conceptually distinct and so negligence cannot be inferred by a process of 'relating back' from a finding of invalidity."

21. Mr Singh, for the claimant, submitted that whilst a breach of a public law duty was not a sufficient condition for a private law action based on breach of statutory duty or negligence, nonetheless an illegal act might well be a necessary condition for a private law claim. He too referred to de Smith at page 758:

"In short, while in some cases it may be a necessary condition, it is never a sufficient one for the award of damages that the act or omission complained of be 'unlawful' in a public law sense."

22. Mr Singh also referred to a passage on page 761:

"Nevertheless, issues as to the lawful scope of a public body's discretion do remain important to questions of tortious liability in relation to negligence, breach of statutory duty, misfeasance in public office and other torts. A duty of care will not be imposed which will be inconsistent with, or fetter, a statutory duty. Where a statute confers a discretion on a public body as to the extent to which, and the methods by which, a statutory duty is to be performed, only if the decision complained of is outside the ambit of the lawful discretion may a duty of care be imposed; in relation to 'policy' decisions of a public body, a finding that the act or omission was unlawful is normally viewed as a precondition for common law liability in tort."

23. The private law proceedings for breach of statutory duty and negligence would involve allegations of a breach of a public law duty even though the statutory duty and the nature of the breach founding the private law claim were not yet particularised. Mr Singh submitted, however, that this court should decide the public law components of that private law action.
24. I accept Mr Singh's submissions that the claimant's private law claim may well involve a public law component, even though favourable conclusions on the public law issues would be far from determinative of the private law claim. I also accept that a properly framed declaration would create an issue estoppel in those proceedings and might be of assistance to a court in determining the private law claim. I cannot be more satisfied than that because of the lack of particularisation as to the private law case which the claimant wishes to mount. However, I cannot decide, and I was not invited to decide, that the private law claim was manifestly hopeless in law or on the facts, and it was not submitted that it should be regarded as a mere cloak for irrelevant public law proceedings brought only out of legal curiosity or as a way of obtaining a public rebuke to the Legal Services Commission for its actions.
25. For that reason, I am not persuaded that this judicial review action should be regarded as entirely academic or futile such that it should not be heard or determined.
26. Mr Singh also submitted, and indeed it was his primary contention, that the proceedings should be heard and determined because of a broader public interest. This broader public interest was said to be the advantage of the ascertainment by the Legal Services Commission of the extent of its powers, an advantage which the Commission itself was quite content to forego. He submitted that the embargo would be used where there was no time for the discharge procedure to be operated and would in practice be used where there was insufficient time for judicial review to be effective before the trial of the underlying action. In those circumstances, he submitted, a challenge to an embargo was always likely to meet the argument that it would be futile in relation to the underlying action. Mr Singh submitted that in those circumstances, and even though some of the issues in this particular case depended upon the particular facts of this case, the court had jurisdiction to determine the public law issues. In R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 at page 457, Lord Slynn said:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example, (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

27. However, the House of Lords declined to hear the appeal in that case because it depended on its facts and on the exercise of a discretion in relation to those facts, and because the issue was not one the resolution of which would assist many cases.
28. Mr George submitted that this case was dependant on its own facts which, so far as the Legal Services Commission could tell, were unique. He submitted also that there was no known queue of cases awaiting the outcome of this case and that if an aggrieved assisted person wished to challenge the lawfulness of any embargo, the judicial review timetable could be operated speedily enough to permit him to do so effectively. Besides, the Legal Aid Act 1988 had been replaced with a new statutory framework in the Access to Justice Act 1999, and the 1989 Regulations had been replaced by a new code. These new legislative provisions would affect all litigation commenced after April 2000.
29. I accept Mr George's submissions on this aspect of his futility argument. Whilst there is an issue of statutory construction and vires, that issue could be raised in another case; and although there must be thousands of pre-April 2000 cases in which an embargo issue could arise, the issue could be resolved satisfactorily by judicial review proceedings were it to do so. Most of the issues in this case depend upon what are, I am told and believe to be, the rather unusual facts of a firmly recommended offer being rejected so close to trial and then reported to the Commission in time for the Commission to act. I also accept that the legislative framework has changed and although there are certain similarities between the two sets of statutory provisions, I cannot reach and I am not reaching or expressing a view at all about what the position ought to be or might be under that new framework. However, because of the relationship between the public law and private law claim, as I have said, I do not consider that the court should refuse to hear and determine the issue even though the private law claim is but sketchily outlined, is beset with hurdles and at best unlikely to lead to a large payment. Those factors do not constitute bases, in my judgment, upon which the court should refuse to deal with a case where the public law issue is a live issue in apparently genuine proceedings.
30. The legal framework must now be set out as I turn to deal with the issues of vires, fairness and rationality.
31. Section 1 of the Legal Aid Act 1988 provides:

"The purpose of this Act is to establish a framework for the provision ... of advice, assistance, mediation and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance, mediation or representation on account of their means."

32. Section 3(2) sets out the general functions of the Legal Aid Board, as the Legal Services Commission was then known, in these terms:

"Subject to subsections (3) and (4) below, the Board shall have the general function of securing that advice, assistance, mediation and representation are available in accordance with this Act and of administering this Act."

33. Section 4 sets out the powers of the Board. Section 4(1) provides:

"Subject to the provisions of this Act, the Board may do anything -

(a) which it considers necessary or desirable to provide or secure the provision of advice, assistance, mediation and representation under this Act, or

(b) which is calculated to facilitate or is incidental or conducive to the discharge of its functions ..."

34. Section 15(4), in the part dealing with civil legal aid, provides that:

"Representation under this Part may be granted by the Board with or without limitations and may be amended, withdrawn or revoked."

35. Section 34(1) contains the regulation making power pursuant to which the Civil Legal Aid (General) Regulations 1989 (SI 1989 No 339) were made. It reads:

"The Lord Chancellor may make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it."

36. Section 34(2) provides that:

"Without prejudice to the generality of subsection (1) above, any such regulations may -

(c) regulate the availability of advice, assistance, mediation or representation ... and the making of contributions towards its provision by reference to the financial resources ... of persons ... ;

(d) provide for the cases in which a person may be refused advice, assistance, mediation or representation or have the grant of it withdrawn or revoked by reason of his conduct when seeking or receiving advice, assistance, mediation or representation (whether in the same or a different manner)."

37. I turn to the 1989 Regulations. Part IX contains provisions dealing with the conduct of proceedings. Regulation 66 imposes a duty on an assisted person to inform his solicitor of changes in his circumstances or in the circumstances of his case which might affect the terms of his certificate. Regulation 67 imposes a duty on an assisted person's legal advisors to inform the Commission of facts relating to the conduct of the case, in particular to inform the Commission where they have reason to believe that the assisted person has required his case to be conducted unreasonably so as to incur an unjustifiable expense to the fund or has required unreasonably that the case be continued. Regulation 70 contains a general obligation on the assisted person's solicitor and counsel to keep the Area Director informed of the progress of the case without being expressly required to do so, and in particular provides that:

"... the assisted person's solicitor shall -

(a) make a report where the assisted person declines to accept a reasonable offer of settlement or a sum which is paid into court."

Part X of the Regulations deals with the revocation and discharge of certificates. Regulation 74 deals with the effect of revocation and provides that a person whose certificate is revoked shall be deemed never to have been assisted, whereas a person whose certificate is discharged ceases to be assisted from the date of the discharge of the certificate.

38. Regulation 75 deals with emergency certificates. It provides the circumstances in which an emergency certificate may be revoked or discharged. It is noteworthy that it sets out a procedure which involves the giving of notice to the assisted person that the certificate may be revoked, but it expressly provides in Regulation 75(6):

"Where notice is served under paragraph (5), no further work may be done or steps taken under the certificate unless authorised by the Area Director."

39. In other words, where notice has been served on an assisted person that the emergency certificate may be revoked, the Regulations contain an explicit power enabling an embargo to be placed on further work being done whilst the question of revocation is considered.
40. Regulation 77 deals with the discharge of a certificate on its merits. It provides:

"The Area Director shall discharge a certificate from such date as he considers appropriate where, as a result of information which has come to his knowledge, he considers that -

(a) the assisted person no longer has reasonable grounds for taking, defending or being a party to the proceedings, or for continuing to do so; or

(b) the assisted person has required the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the fund; or

(c) it is unreasonable in the particular circumstances that the assisted person should continue to receive legal aid."

41. Regulations 76 and 78 provide for the discharge of a certificate on, respectively, financial grounds and the abuse of legal aid.
42. Regulation 81 sets out the procedure to be adopted when discharge or revocation is contemplated. It provides:

"(1) Except where a certificate is discharged or revoked under regulation 75 or discharged under regulation 76 or 80(a), (b), (c)(i), (iii) or (iv), no certificate shall be revoked or discharged until -

(a) notice has been served on the assisted person that the Area Director may revoke or discharge his certificate (as the case may be) and that he may show cause why it should not be revoked or discharged; and

(b) the assisted person has been given an opportunity to show cause why his certificate should not be revoked or discharged.

(2) Where an Area Director revokes or discharges a certificate after notice has been given under paragraph (1), the assisted person may appeal to the appropriate area committee against such revocation or discharge and the provisions of regulations 36 to 39 shall, with the necessary modifications, apply to the conduct of such appeals."

43. Regulations 36 to 39 contain two matters which I should refer to briefly. Appeals have to be brought within 14 days of the notice of the refusal of certificate or discharge, and the determination of the appeal involves, where it is allowed in whole or in part, a direction to the Area Director to offer a certificate subject to such terms and conditions as the area committee thinks appropriate.
44. The language of Regulation 81(1) and (2), together with the appeal provisions, show that the discharge or revocation takes effect after the opportunity to show cause has been given and any representations have been considered, but before any appeal is made. There is no specific timetable for the period which must be given to an assisted person in which to show cause as to why revocation or discharge should not take place.
45. I shall deal first with the question of whether the Legal Services Commission had power at all to impose an embargo while it was contemplating the discharge of a full legal aid certificate. This is a question of statutory construction and the answer to that question is not dependant upon the particular factual circumstances here.
46. Mr Singh, for the claimant, submitted that there was no express power to place an embargo on a full legal aid certificate either in the Act or the Regulations. There was an express power to discharge a certificate, but that only took effect from the date when the discharge was effected, and that in the present case was 26th June 2000. The embargo prevented work being done after 5th June 2000, before the discharge took effect. Mr Singh submitted further that the power of discharge was circumscribed by a procedure which involved the giving of notice, the giving of an opportunity to make representations, and the potential for an appeal. He submitted that the Commission's embargo here was in substance a discharge so far as the claimant was concerned, but one which bypassed the statutory framework and procedural safeguards for the discharge of a certificate. He submitted that there was a clear distinction between discharge and embargo: the revocation of an emergency certificate could be preceded by an embargo because this was expressly provided for in the Regulations; the contrast with the position pending the discharge of a full certificate was stark.
47. Insofar as Mr Singh's approach would prevent the Legal Services Commission acting promptly to prevent the unreasonable use of public funds, that was a reflection upon inadequately drafted regulations which, with appropriate safeguards for the assisted person, could provide for an embargo.
48. Mr George submitted that section 3(2) of the 1988 Act together with the general ancillary powers in section 4(1)(b) contained the necessary general powers for the imposition of an embargo. The function of the Commission in providing or securing the provision of advise, assistance, mediation and representation included the function of preventing the abuse of public funds. This involved preventing the funding of unreasonable litigation, protecting the costs position of the Legal Aid Fund, and preventing the legal aid scheme being used unlawfully to oppress a citizen in circumstances where the reasonable privately funded litigant would have ceased to litigate. The imposition of an embargo was ancillary to that function.
49. Although section 34(1) was a provision of the Act subject to which section 4(1)(b) had to be read, neither that section nor the Regulations excluded expressly or by necessary implication the imposition of an embargo. Mr George rejected Mr Singh's submissions that the express procedural structure for the discharge of a certificate eliminated any scope for the general power to be used to provide for an embargo. Likewise, a reference to the human right of access to the courts added nothing because there was no Article 6 ECHR right for legal aid to be continued as a general proposition. The statutory construction was not one which could depend on the particular circumstances. Here, if an embargo could not be imposed pending completion of the discharge procedures, abuses could continue unchecked for some time, including the provision of legal aid for an unnecessary trial, as Mr Singh himself accepted.
50. In my judgment, there is no power to impose an embargo. I accept Mr George's argument that the prevention of abuse is a necessary part of the Legal Services Commission's function in section 3(2) and section 4, and that the imposition of an embargo on further work being done pending consideration of the discharge of a legal aid certificate can properly be regarded as ancillary to that function. The question is whether as a matter of construction of sections 3, 4, and 34 and of the Regulations, the ancillary power which would otherwise exist has been removed.
51. Section 4 provides that the existence of the powers in section 4(1)(b) is "subject to the provisions of this Act"; those provisions include section 34 which empowers regulations to be made for the purposes which I have set out already. I do not consider that the mere existence of a regulation making power in those terms or the mere fact that it has been exercised of itself cuts down or removes the general ancillary power. However, section 34, together with the Regulations which have been made under it, are provisions subject to which section 4 must be read.
52. The actual regulations made under section 34 do expressly provide the means whereby the abuse of public funds through the unreasonable continuation of litigation is to be prevented. They provide expressly for an embargo where an emergency legal aid certificate has been granted and its revocation is contemplated. The Regulations provide a procedural structure in Regulation 81 for the discharge of a full certificate in circumstances where it is unreasonable for legal aid to continue by reference to Regulation 77 and in other circumstances related to the merits. Discharge on financial grounds and discharge for abuse of legal aid is also provided for. The procedural requirements apply or apply with variations depending on the grounds of discharge. Depending upon which ground for revocation or discharge of the full legal aid certificate is relied on, notice must be given and an opportunity to show cause against the revocation or discharge must also be given.
53. Where such express procedural provisions exist, I do not consider that the Regulations should be regarded as containing or retaining an implied embargo power simply because it has not been expressly removed. Indeed, the contrast with the expressly permitted embargo pending the revocation of an emergency certificate strongly supports Mr Singh's submission that any power of embargo pending consideration of the discharge of a full certificate has been impliedly excluded, because it has not been provided for.
54. The general power in section 4(1)(b) cannot be regarded as continuing to contain such a power in the light of the Regulations. Were that so, the Regulations would provide a rather uncertain and incomplete structure and guide as to the powers of the Commission to deal with discharge on its merits or for abuse. Anything not forbidden expressly would be permitted, with whatever effect on the assisted person's proceedings or trial that might have. I do not consider that Parliament can have intended a legally assisted person to be in such a position. Are there, for example, other grounds upon which a certificate can be discharged on its merits? These Regulations contain in their express provisions and in any which are necessary implied the complete statutory code for the discharge of certificates and related procedures; and embargo is not permitted in these circumstances.
55. I also consider that my conclusion is supported by the fact that the embargo as operated is curiously one sided in its effect. The legally assisted person cannot use another solicitor nor obtain private funding from any source to pay his existing solicitor. He may be unable to obtain his papers from the solicitor. The statutory charge remains to protect the Commission yet all the damages and costs awarded after the embargo takes effect, including any extra sums entirely attributable to the assisted person's unaided efforts, are available to meet the statutory charge. If an embargo power were to have existed, I would have expected specific provision to deal with those problems which could, in combination, seriously prejudice a litigant's right to carry on his claim at his own expense or in person and could prejudice the fairness of the trial of his action.
56. I do not consider that the interpretation of this legislation and the Regulations is further advanced, however, in this instance by specific human rights jurisprudence. I was referred to Airey v Ireland (1979) 2 EHRR 305 paragraphs 24 to 28 as illustrating that the Article 6 right to a fair hearing may include the right to state funded legal representation. That case concerned the complex evidential, legal and procedural problems which an unassisted litigant in Irish High Court judicial separation proceedings faced. It shows no more than that, in very particular circumstances, Article 6 may involve the grant of state aid, or its non-removal, but it does not support nor was it said to support any general human right to state aid. Elsewhere, notably in R v Lord Chancellor, ex parte Witham [1998] QB 575, it was obiter doubted by the Divisional Court that legal aid could be in the same category as court fees when considering a possible breach of Article 6 by reference to rights of access to the court.
57. I do not find assistance in that jurisprudence for two reasons. Firstly, there is no general jurisprudence that the grant of or continuation of legal aid is generally a right within Article 6 in civil cases, but it is conceded, and necessarily so in this case, that the claimant could not argue that he had an absolute right to the continuation of legal aid. It is plain that legal aid can be withdrawn and certificates discharged without any necessary infringement of human rights. An embargo on further expenditure whilst a discharge is being considered likewise gives rise to no necessary conflict with any Article 6 rights. Secondly, on that basis any human rights issue turns upon particular facts and here upon the manner in which legal aid was embargoed and the effect of that on a fair trial. However relevant that human rights issue may be in considering the lawfulness of the exercise of any discretionary power to impose an embargo, it is of no real assistance in ascertaining whether that power exists or not. That is an issue solely of statutory construction, unaffected by any specific human rights point.
58. I did not find persuasive the defendant's suggestion that there would be serious problems, if an embargo could not be imposed, for the avoidance of abuses and unreasonable or unnecessary expenditure. I entirely accept that an embargo would be a useful power in the Commission's armoury but I also accept that whilst an embargo is not uncommonly used, it is unique to find it used in quite this way so close to trial. It follows that the amount of time available in which the Legal Services Commission can act to prevent significant and expensive steps in litigation is likely to be longer than here. I see no reason why the process of discharge should not be hastened with short timetables provided for representations to be made. Here, for example, the claimant knew full well what the reason for the potential discharge of the certificate was and why the embargo had been imposed. He could have responded the next day with his representations and a decision could have been made very rapidly, indeed as rapidly as the original embargo was imposed. That would bring the certificate to an end. I see no necessary obligation in all cases to give so much time as enables a long response to be made or the appeal process to be gone through in such time as to leave a significant period before trial. I do not consider that the conclusions which I have reached will impose serious problems for the Commission in dealing with cases which should no longer be publicly funded. Alternatively, the Regulations could be amended.
59. Whilst it is unnecessary in the light of that conclusion to consider the other issues raised, I shall do so as I have heard full argument on them.
60. If there had been a power to impose an embargo on further work pending a discharge of the legal aid certificate, there would still have been an obligation on the Commission to give the claimant an opportunity to make representations as to why that embargo should not be imposed. The claimant had a legitimate expectation that his legal aid certificate would continue until trial or until discharge in accordance with the Regulations. That legitimate expectation was created by the issue of the legal aid certificate in terms referring to trial but in a statutory context which permitted discharge on notice.
61. Mr Singh referred in this context to the Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at page 412 per Lord Diplock. That legitimate expectation, in the sense of an expectation the removal or curtailment of which attracted the application of the rules of natural justice or of the duty of fairness, was defeated here by the embargo imposed on 5th June and which, insofar as the legal aid certificate benefited the claimant, operated in effect as a discharge of it. Yet the claimant was given no prior notice of the embargo by the Commission. It was not sufficient to protect the Commission in this case for the claimant's solicitors to have warned him of the Commission's likely reaction. He was not told that the Commission was open to receiving representations about the imposition of an embargo. I appreciate that the claimant could have written and made his points to the Commission; sometimes that may constitute an adequate answer to an alleged lack of fairness. However, here, with a procedure with which the claimant was not familiar and with time pressing upon him, it was for the defendant to notify him that he could make representations and to provide an opportunity for representations to be made, which the defendant should then have considered.
62. The fact that the legally assisted person could write to the Commission, although not notified of that opportunity, and the fact that he was aware of the situation because of what his solicitor had told him do not suffice to discharge the duty of fairness here. Indeed, they would be arguments that would be equally applicable to the actual discharge of a full certificate. However, the Regulations have specifically provided that it is for the Commission to notify the assisted person and to provide him with the opportunity to make representations. I do not consider that any less can be required of the Commission in the case of an embargo with all the effects which it may have. The assisted person was entitled to the opportunity to make his points to the Commission and not just to his legal advisors.
63. I do not, however, consider that this obligation to be fair need involve a cumbersome or time-consuming process. The essential points could have been provided to the Commission and ruled on by it by 6th June. The Commission obviously felt that it had enough information to reach a view upon the embargo two days before trial. The need for speed, however, does not remove the statutory duty to be fair, but it may affect the way in which in any particular case that duty is complied with.
64. It is not clear that the claimant would have had much more to say beyond the reasons why he disagreed with the advice that his lawyers had given, and that his trial was imminent. It may be, as Mr George has submitted, that nothing persuasive could have been said. It may be that there were no other realistic points which could have been made and that the conclusion would have been clear that the claimant was continuing to be unreasonable in refusing the offer. However, at least if that had happened, the Commission would have had to grapple with the issues which the claimant wished to raise in relation to disclosure and the value of the claim, and it would have had to reach a view on them and their relationship to the imminence of the trial. That latter fact made the need to grapple with those issues particularly important. Relevant too would have been the lack of any other permissible source of professional legal assistance. The opportunity to make representations might have enabled the embargo to have been lifted at least for the purposes of making an application for an adjournment, however unlikely it might have been that such an application would have been successful.
65. Whilst the unanimous advice of the lawyers was that the offer should have been accepted, and that would have been bound to weigh very heavily with the Commission, and whilst the Commission must be able to act speedily, especially with a trial imminent, it, in my judgment, cannot say here that no difference would have been made by the grant of an opportunity to the claimant to make his points to it. The claimant might have found that the words which persuaded his ex-employers at the court door to settle for 50 per cent more than had been offered, were also sufficient to persuade the Commission that they should listen to him.
66. Mr Singh next submits that the defendant unlawfully delegated its decision, or abdicated responsibility for its decision, to the claimant's solicitors. In the Legal Service Commission's witness statement, Mr Browne said that the Commission staff:

"... are unable to assess for themselves whether the grant or continuation of legal aid is reasonable in any particular case."

67. I do not accept that the Commission erred in that way. Information from the solicitors as to the merits of the case and as to the unreasonable refusal of offers is required to be provided by regulation. The Commission is certain to regard such information as very valuable and important in its decision-making. It cannot be expected always to delve into all the background of the case to provide a second legal opinion. If the lawyers disagree amongst themselves or if cogent material is put forward by the assisted person to dispute his lawyers' view, the Commission is of course bound still to reach its own view, but in the absence of any other material, it is fully entitled to act on the expressed view of the assisted person's lawyers that the settlement offered was reasonable and his refusal of it was unreasonable. Of course, if the reason that material to dispute such a view is unavailable, is that no opportunity to provide it has been given, the legal error is one of unfairness.
68. It may be possible that relevant considerations were ignored, for example, the difference between a late non Part 36 offer and a Part 36 offer, and whether the latest offer had adverse costs implications; the protection which the statutory charge provided may not have been fully considered, but I am unwilling to reach a positive conclusion that the material considerations said to have been ignored were in fact ignored. The position in relation to the statutory charge would have been obvious to the Commission. The former may well have been less obvious but equally they may well have been seen as utterly insignificant to a Commission looking at why public funds should be paid to the claimant's lawyers in circumstances where they had expressly advised that an offer of settlement be accepted and it had been refused. In my judgment, the key point is that, in fairness, the claimant should have had the opportunity to make his arguments for whatever significance they may have had.
69. Finally, Mr Singh submitted that the decision was irrational and irrational by reference to the more intrusive level of scrutiny appropriate for a decision which impacted adversely on the claimant's right of access to the courts. I accept that the developing human rights jurisprudence may very well mean that the very high threshold of irrationality in Wednesbury is no longer appropriate in a human rights context (see, for example, R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 [2001] 2 WLR 1622). I have already referred to Airey v Ireland: the fact that someone may have to act in person cannot of itself be a breach of Article 6. The fact that he might have to do so at the last minute without the opportunity of access to another lawyer might do so. However, here the trial was on liability only, looking at injuries which the claimant had suffered and expenses which he had incurred with both of which he was familiar. It was a fast track claim for a relatively small sum. A reasonable offer had been unreasonably refused on the unanimous advice of experienced lawyers.
70. It is difficult to see that there was irrationality there in a conventional Wednesbury sense. Even on a more intrusive level of scrutiny, looking at the proportionality of means and effect, it is difficult to say that the Commission acted unreasonably or disproportionately in removing legal aid from someone in such circumstances. Fundamentally, the Commission is entitled to stop funding litigation where a reasonable offer is refused. The issue here, however, is whether it can do so by an embargo imposed before the discharge of the certificate, and if so, whether it did so fairly. In my view it cannot and did not, but if it had the power and had it acted fairly, the decision which it reached was perfectly reasonable.

MR SINGH: My Lord, I am grateful for that. Can I deal with a number of the issues which would then follow from my Lord's judgment. Perhaps I can start with the issue of costs. The first application I make, my Lord, is for the claimant's costs of these proceedings to be paid by the defendant. I understand that will not be resisted.

MR JUSTICE OUSELEY: I would not be surprised.

MR GEORGE: My Lord, that is correct.

MR SINGH: Subject to detailed assessment if not agreed obviously. The second point is that the claimant has public funding for these proceedings, so I would ask for the usual order that the claimant's costs be assessed in accordance with Community Legal Service costs regulations.

MR JUSTICE OUSELEY: That is very generous of the defendant!

MR SINGH: My Lord, the third and fourth issues both relate to relief, and I have had a chance to discuss procedurally how we should proceed with my learned friend before we started this morning. Subject to your Lordship's views, what we would be grateful for is if both sides could have perhaps a few days to consider the judgment, and in the light of that to try to seek to agree both any terms of a declaration and also any consequential directions there may be for the damages claim which remains. If we are able to agree that perhaps it would be convenient to the court if there were no need for us to come back and there could be something agreed in writing. If there were a need to come back I would imagine it would be a short mention, if that, before the end of this term.

MR JUSTICE OUSELEY: A short mention on Monday would be convenient.

MR SINGH: I am sure that would be convenient on our side. I am grateful.

MR JUSTICE OUSELEY: If you have agreed you do not need to come back unless I have any reservations about the terms of the declaration.

MR SINGH: If we endeavour to get it to the court by Friday, would that suffice?

MR JUSTICE OUSELEY: That would be very helpful

MR SINGH: I am grateful. That is all I wanted to say, my Lord.

MR GEORGE: My Lord, I am instructed to ask for permission to appeal your Lordship's judgment. Is it convenient to deal with the issue at this time or would your Lordship prefer to deal with that next Monday in the light perhaps of consideration of the judgment, particularly by those instructing me?

MR JUSTICE OUSELEY: Do you have anything to say about permission?

MR SINGH: I do not. The only practical consideration I have in mind is that we are trying to endeavour to avoid having to come back next week. If there are issues like permission that your Lordship felt able to deal with today, that might be better.

MR JUSTICE OUSELEY: I intend to deal with it today.

MR GEORGE: My Lord, in that case if I may ask for permission.

MR JUSTICE OUSELEY: You need not argue the point. You may have permission.

MR GEORGE: I am grateful.