CO/5887/2002 
Neutral Citation Number: [2003] EWHC 1629 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 19th June 2003
 
B E F O R E:

MR JUSTICE NEWMAN
 
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LONDON BOROUGH OF WANDSWORTH
(CLAIMANT)

-v- 

KEEFFE
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
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MR P OLDHAM (instructed by Legal Services, Wandsworth Borough Council) appeared on behalf of the CLAIMANT
MR D WOLFE (instructed by Levenes, Wood Green) appeared on behalf of the DEFENDANT
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POST-JUDGMENT PROCEEDINGS & JUDGMENT 
(As approved by the Court) 
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Crown copyright©
Thursday, 19th June 2003
1.	MR JUSTICE NEWMAN:  For the reasons given in a judgment which is handed down, this appeal by the London Borough of Wandsworth is dismissed.
2.	MR WOLFE:  My Lord, I am grateful.  My Lord, a number of slightly complicated interacting applications, if I could take them starting with the simplest.  The first application is an order for public funding assessment.  Do you want me to carry on or pause one by one?
3.	MR JUSTICE NEWMAN:  Is there any complication arising from your status here, because you are now here for the child who you applied to join as intervener, third party interest.  I refused that application.  Have I got any jurisdiction over you?  You are not a party to the action.
4.	MR WOLFE:  My Lord, I think it is almost the other way round.  I do not think your Lordship has any choice but to make an order for public funding assessment, and unless your Lordship does then my solicitors and I do not get paid, being very blunt about it.  So your Lordship has proceeded on the basis --
5.	MR JUSTICE NEWMAN:  I am not here to deprive you of your money, that is not my intention, but on the other hand on what basis has the court any jurisdiction over you at all?  You are here, you came here to make an application.
6.	MR WOLFE:  My Lord, in a sense --
7.	MR JUSTICE NEWMAN:  -- which I refused, and formally at that stage if it had not been that I wanted to avail myself of the fact you were here and you had prepared the argument, and since you had been paid to be here I kept you here, in effect you could have walked out of the door at that stage.
8.	MR WOLFE:  My Lord, yes, and certainly up to that point, midway through the hearing, your Lordship plainly had jurisdiction, beyond that it may be a bit more complicated.
9.	MR JUSTICE NEWMAN:  I suppose you had status to come here to make an application, I have refused the application and in the context of that then you can have your assessment.
10.	MR WOLFE:  I am grateful.
11.	MR JUSTICE NEWMAN:  Thank you.
12.	MR WOLFE:  The second application, which I say immediately I do not expect to succeed, is I apply for my costs to be paid by the unsuccessful appellant.  As I say, I say immediately that I do not expect that application to succeed.  I then immediately apply to your Lordship for permission to appeal against your Lordship's refusal of that costs order.  Then thirdly, this is the substantive one which makes sense of the second and third, I seek permission to appeal against your Lordship's refusal to joint A as an interested party.  My Lord, plainly 2 and 3, in other words the substantive costs applications, are simply put there so that when and if the Court of Appeal determines the joinder question in my favour there is actually a live costs point to bite on.  So, my Lord, my substantive application is an application for permission to appeal against your Lordship's refusal on joinder.  
13.	What your Lordship has done, in my submission, has two effects.  One is to have an effect in this case, and I will explain that in a second and, secondly, has an effect much more widely, your Lordship has laid down a hard and fast rule in effect of court procedure.  Can I deal with those in two stages.  I think my Lord has on his desk a copy of Scott Baker J's judgment in a case called Boxall.
14.	MR JUSTICE NEWMAN:  Yes.
15.	MR WOLFE:  If my Lord looks very briefly at page 7 of that.  This was a case, your Lordship may know it, in which Scott Baker J was dealing with what the court should do about costs where a judicial review action has gone short because the respondent has changed its position.  I am interested in the passage at the foot of page 7, and in particular numbered paragraphs 1, 2 and 3.  Scott Baker J (as he then was) accepted all these propositions.  Three consequences flowing both to my solicitors principally and to the fund, and potentially to the client, not so directly here because he is on a nil contribution.  So my Lord subparagraph (2): "The level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs" and, thirdly, of course the effect of not being joined and not getting a costs order in our favour is that the Commission bears the costs rather than the unsuccessful party, here being Wandsworth, so a very practical effect in this case.  
16.	In terms of the wider position, the effect of your Lordship's judgment, and it is principally paragraph 5, your Lordship has laid down a hard and fast rule to say: "The court should not permit an interested party to be joined to an appeal where an existing party can raise any issue in connection with the appeal".  My Lord, consistent with my submissions before your Lordship before, I say that the court should not second guess the LSC's process and your Lordship has gone too far in laying down a hard and fast rule.  
17.	If I can just illustrate that briefly.  One of the things that was canvassed before your Lordship before was what the LSC, as it were, knew about these abuse arguments.  The other thing I hope your Lordship has on the desk is printed from a web page headed "Legal Services Commission Consultation".  If your Lordship turns to page 2 of that, it is headed "Education Cases - Applications in the Name of the Child".  This was a Legal Services Commission consultation which took place at the end of 2002 in which they were consulting the public effectively, but principally involved professionals, on how they should approach applications made in the name of the child.  If your Lordship sees that is explained in the first paragraph.  The paragraph under the heading "The Case Law" explains principally, I accept by reference to judicial review, in the last three lines of that paragraph under case law:
"Even though the child has sufficient interest the only reason why the application was made in the name of the child was to obtain legal aid and consequent cost protection.  The Court of Appeal regarded that as an abuse."
That was the JC case dealing with school admissions.  The LSC then went through a consultation exercise with a view to itself adopting guidance, and your Lordship sees the guidance they then adopted at page 8 of this extract, which is how they should approach judicial review applications where the application has been made in the child's name and arguably it should have been made in a parent's name.  So in response to JC, which, if you like, flew the kite on this point for JR, the LSC has now developed its own sophisticated guidance which it then applies to subsequent applications.  
18.	In accordance with my submissions before your Lordship earlier, that is what should have happened here rather than the court laying down a hard and fast rule effectively ruling on how the legal aid scheme should operate and pre-empting the LSC's own consideration of it.  In effect, your Lordship is locking out a party or a class of party and thus affecting the way the whole regime works.  In accordance with my submissions before, at least arguably, there is a real prospect of success, I say, on the argument, the rule should not be a hard and fast one, the question should be left to the LSC properly informing themselves of the legal arguments and the facts of the original case.  
19.	So, my Lord, in my submission, it would be appropriate for the court to grant permission to appeal against your Lordship's order on the interested party being joined in order to allow the Court of Appeal to consider that issue, which is of importance in this case and of considerable wider importance.  
20.	Unless I can assist your Lordship further, that is my submission.
21.	MR JUSTICE NEWMAN:  Thank you very much.  Mr Oldham.
22.	MR OLDHAM:  My Lord, some brief points.  My Lord, this is of course a second appeal, and under rule 52.13 of the rules, which in my version is at page 1279, your Lordship is probably well aware of it.
23.	MR JUSTICE NEWMAN:  Read it to me.
24.	MR OLDHAM:  It says: "Permission is required for the Court of Appeal for any appeal to that court from a decision of the county court or the High Court which was itself made on appeal".  My Lord, I accept that obviously this decision on costs was not the subject of the original appeal to the Special Needs Tribunal, but nevertheless the wording of 52.13 suggests that, notwithstanding that point, since this has now been appealed to your Lordship and since this issue of costs has now arisen it does seem to me, my Lord, that under that rule nevertheless the Court of Appeal's permission is required to take the matter further.  In any event, I say the point is patently a bad one for the following reasons.  The Court of Appeal has now twice made it abundantly clear, in the Glamorgan case and the Westminster case, what the position is.  The position, my Lord, as your Lordship has held, is that the child should not have been joined and there is no need for the Court of Appeal to be bothered a third time about this.  
25.	As regards the document from the Legal Services Commission which my learned friend has handed up, my Lord, that is LSC procedure, the point we are dealing with is a question of law and the law is indeed as I submitted to your Lordship at the hearing and as your Lordship found, that the child should not have been joined --
26.	MR JUSTICE NEWMAN:  Having only just looked at it, you might have seen it for a longer period of time than I have had a chance, but looking at page 8.
27.	MR OLDHAM:  My Lord, yes. 
28.	MR JUSTICE NEWMAN:  Is there a proposal there which you say falls foul of the principle of law that I have talked about? 
29.	MR OLDHAM:  My Lord, I have only literally just been handed this.
30.	MR JUSTICE NEWMAN:  I have been scanning this as Mr Wolfe has been making his submission.
31.	MR OLDHAM:  My learned friend says it does not deal with the point.
32.	MR WOLFE:  Sorry if I did not make it clear.  They dealt in that consultation with judicial review only.
33.	MR JUSTICE NEWMAN:  Yes. 
34.	MR WOLFE:  My point simply was that what should now be embarked on if necessary is a parallel exercise for these kind of appeals.
35.	MR JUSTICE NEWMAN:  I was trying to see a conflict, but -- 
36.	MR WOLFE:  My Lord, I am not saying there is a conflict.
37.	MR JUSTICE NEWMAN:  You submit that this is a principle of law, that the judgment expresses that which the Court of Appeal has said on two occasions, at least if not on others? 
38.	MR OLDHAM:  My Lord, that is right, and Boxall has nothing to do with this case.  
39.	On page 2 of this document, the same Legal Services Commission document, in the third paragraph under "Applying the Funding Code Criteria" the writer, who I understand to be somebody in the Legal Services Commission, refers to JC and says in the first paragraph that practitioners say JC should not apply where there are special educational needs challenges; that is to say, these practitioners are saying no children should be allowed to be funded in these cases.  The next sentence says "We should not however accept such arguments".  My Lord, if that is followed through in the rest of the document, which I have not had a chance to read, that would suggest your Lordship is positively right.  
40.	Unless I can assist your Lordship further, those are my submissions.  
41.	MR JUSTICE NEWMAN:  Thank you very much.  Mr Wolfe, do you want to add anything? 
42.	MR WOLFE:  My Lord, I accept fully that the substantive appeal before your Lordship was a second appeal and therefore in a sense Mr Oldham could not have asked your Lordship for permission to go to the Court of Appeal on the point on which he lost, but on the point on which I lost, namely the joinder point, this is not a second appeal.  The rule is to prevent people having effectively three bites at the cherry, tribunal, High Court, Court of Appeal, that is not the rule that bites on my application here.  My Lord, I simply say on the substantive issue the court had a discretion to join my client as a party.  Your Lordship has effectively turned that into a hard answer, effectively saying the court should never.  In my submission, that is a material change.  I am grateful.
43.	MR JUSTICE NEWMAN:  Thank you very much.  
44.	So far as the costs of the appeal are concerned, there will be no order as to costs.  
45.	I have had an application from Mr Wolfe on behalf of A, the child, who is in these proceedings the unsuccessful applicant to be joined as an interested party.  Mr Wolfe submits that so far as that refusal is concerned, important points of principle arise, firstly, as to law and, secondly, as to the position of the Legal Services Commission and public funding.  He submits that the statement in paragraph 5 of the judgment which has been handed down to the effect "The court should not permit an interested party to be joined to an appeal where an existing party can raise any issue in connection with the appeal, without the other person affected being joined" puts the matter too firmly and conclusively.  He submits that, therefore, the Court of Appeal should look at this matter and also, as a result, review the refusal to permit joinder, which in turn would give rise to a review on the costs position upon which this court left the matter open for the Legal Services Commission to consider, in the light of the potentiality for an abuse of process having occurred because public funding had been sought for the boy in order to achieve an advantage for the parent which she could not enjoy because she had been refused public funding.  
46.	That being the background to the matter and the substance of the application, my conclusion is as follows.  Firstly, as to the principle of law, I am satisfied that no arguable ground of challenge exists in relation to the statement of principle, which is nothing more than a statement of principle which emerges from the two cases in particular to which reference is made in the judgment, namely ex parte South Glamorgan County Council and the City of Westminster case.  The principle follows from the rationale of those two cases and from the argument in this area of the law which gives rise to the question of abuse.  
47.	As to whether in some way or another it is interfering with the powers of the Legal Services Commission, I reject that contention and would desire to make the position clear so that nobody in the Legal Services Commission should understand that the judgment is intended in any way to influence the exercise of their powers in any way other than by having regard to legal principle.  The particular facts of this case, which the Legal Services Commission will no doubt have regard to when they consider how they approach the grant of public funding in this case will, in my judgment, include the fact that public funding was granted to cover an event, namely "A" being a party to the appeal, before any application had been made to the court for the child to be joined as an interested party.  In future it seems to me the sensible way forward is, where there is good ground or arguable ground which satisfies the Legal Services Commission for an application to be made to the court for the child to be joined as an interested party, that funding should be available to any such child after consideration by the Commission, for an application which can be made promptly and timeously to the court.  If that is done the parties to the appeal will know what the position is by the time the appeal comes on for hearing.  That was not done in this case and it gave rise to the unusual circumstances in which the court had the benefit of the presence of Mr Wolfe, with his learning and experience in this sphere of education, but present, according to the view of the court, unnecessarily and after more public funds had been expended than the law governing the case merited.  That is really the difficulty which arises in relation to this particular case.  It gives rise to no difficulty in the future and the Legal Services Commission can approach their duties having regard to the principles of law, which are well established and to which my judgment provides no enlargement or change.  I hope that is enough said to clear the air so that no difficulties arise in the future.  
48.	MR WOLFE:  My Lord, I am not sure if your Lordship needs to formally dismiss my application for permission for costs so that my application to appeal -- 
49.	MR JUSTICE NEWMAN:  I do indeed.  I do all those things.  Thank you very much.