QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PURVIS||Claimant|
|LEGAL SERVICE COMMISSION||Defendants|
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Miss A Walker (instructed by Legal Services Commission) appeared on behalf of the Defendants
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"I have provided as accurately as possible all the information requested on this form."
"Part of the application has been granted and part has been refused."
The notice attached to that letter described those parts of the application for public funding which had been granted. The letter continued:
"The remaining parts have been refused for the following reasons: it is unreasonable for funding to be granted as the prospects of obtaining a successful outcome in the proceedings ... are poor."
That letter dated 12 March 2012 accordingly represented the decision of the Legal Services Commission on what are known as the "merits", that is to say a decision in principle that those parts of his application which had been granted were claims for funding which fall within the relevant funding regulations and Code, and which were assessed by the Legal Services Commission as having sufficiently good prospects of success. There has never been any challenge by or on behalf of Mr Purvis to the refusal by the Legal Services Commission to fund other parts of his claim on the grounds that the prospects of success are poor. The language of the letter of 12 March 2012 conveys that the offer was subject to the means assessment which had not at that stage been completed. However, two days later, on 14 March 2012, the Legal Services Commission sent a further letter in which they set out their assessment that the "disposable income" of Mr Purvis was £9,922.92 and that this rendered him "ineligible because your income is too high". As I understand it, there was some challenge to that, which resulted in the Legal Services Commission writing a further letter dated 19 March 2012 in which they slightly raised their assessment of the disposable income and repeated the assertion that he was ineligible for legal aid.
"I seek a review of the decisions of the Legal Services Commission on my financial eligibility for funding by the LSC and a mandatory order that the LSC apply the regulations fairly, correctly and legally."
It is not now necessary to go into the complex detail of his claim or of the defence of the Legal Services Commission. In essence, there was a dispute between them as to the proper treatment of, and application of the relevant regulations to, various items of income and expenditure in the context of the claimant's then business. At the risk of very considerable simplification, it seems that the Legal Services Commission considered that his own level of personal disposable income was being artificially reduced by attributing to his business expenditure that which was properly personal expenditure of his own.
"If your client wishes to receive legal aid on these terms, they must complete the agreement (this has been sent to your client) and return it with the first payment instalment. Please make sure these documents are received by us before 21 June 2012. Once the first payment has been received and processed your client will be sent a payment book, which must be used to make further payments. ..."
So the Legal Services Commission say that that letter, which one way or another clearly came into the hands of the claimant himself before 7 June 2012 at the latest (and probably by 30 May 2012 at the latest), constitutes their formal offer at that stage of public funding, subject to his (a) signing the agreement document, and (b) paying the first instalment of monthly contributions of £138.43.
"a client who wishes to accept such an offer of a certificate shall, within 14 days of receiving the offer ... (a) signify his acceptance of those terms on a form ... ; and (b) if those terms require the payment of any sums of money, pay any sums due ..."
In short, submits Miss Walker, that provision of the Funding Code affords a period of 14 days within which the applicant for public funding must accept the offer if he wishes to take advantage of it. But Miss Walker and the Legal Services Commission fully recognise that, for some reason, the letter of 24 May 2012 afforded to this particular applicant a longer period, namely until 21 June 2012. It is the very firm submission of the Legal Services Commission, and of Miss Walker on their behalf, that as the claimant did not accept the offer contained in the letter of 24 May 2012 before 21 June 2012 (or indeed at all) that offer "lapsed" on and after 21 June 2012. That is a matter to which I will return again later.
"Dear Mr Purvis, Following last Thursday's hearing before HHJ McKenna where you indicated that there has been a change of financial circumstances, it was agreed that you should submit a fresh application to the LSC explaining this.
The CLS Means forms (1, 1A, 1C) and CLS3 forms that you shall need to complete are on the LSC's website, as we had indicated at the hearing. These forms are all accessible by members of the public. The link to these forms is provided below: [the website link is then correctly inserted]. Please note that the regional office has confirmed that you will need to complete a new substantive application in light of the change in your circumstances and noting the time that has lapsed since your application in February 2012. This needs to provide an update on the current status of your divorce/wardship proceedings and details of what you now require funding for.
You will need your former solicitor [viz. a reference to Miss Chanot] or a legal services provider who has a contract with the LSC [viz. a reference to a suitable alternative solicitor if Mr Purvis preferred to instruct someone other than Hartnell Chanot] to undertake the necessary means and merits assessment and complete these forms with you in order to receive legal aid funding.
Your application needs to be submitted to the Bristol regional office for processing, which your solicitor should manage on your behalf.
I trust this assists you and that you are able to access the relevant forms."
"Dear Ms Khan, Having taken advice since the hearing, the judicial review proceedings are based on the decision you made to refuse funding from the February decision, thus the new application would neither be appropriate or relevant to these proceedings, as the merits and substance of this case have not changed. Thus a fresh application will not be made at this time. ... "
"The claimant has not accepted the LSC's offer of legal funding at any stage and therefore he needs to submit a new application for funding which includes updated case details, noting that events will have moved on since February 2012, and up-to-date means information. HHJ McKenna asked the LSC to assist the claimant with the provision of the relevant applications forms, which I did via email on 29 October 2012, however the claimant responded that day to say he would not make a fresh application. The LSC's offer made to the claimant on 25 May has since lapsed and as it is evident that the claimant's original application is no longer valid or current, his only option is to make a new application, which he has refused to do."
"In respect of the means application forms, as per previous correspondence (29 October, 6 November, 14 November 2012) you will need to submit a fresh application in order to obtain legal aid. This requires the completion of a merits application (form CLS3) in addition to the means forms submitted ... I note that you appear to be instructing Hartnell Chanot solicitors (who are copied to this correspondence) who should be able to assist you with completion of those forms and submission ... We may be able to assist with expedition of your application, if we are so notified."
That position by the Legal Services Commission is very considerably expanded in a further lengthy letter written by Miss Khan on 15 February 2013 to this court but also copied to the claimant, now at supplementary bundle pages C28 to 31.
"I note that you received an offer of funding on 24 May 2012. Unfortunately this offer has now lapsed. In view of the fact that it has been 10 months since the offer has been sent and that the forms we hold on record are out of date, it will be necessary for you to speak to your solicitor about submitting a fresh application."
The case worker then went on to identify various pieces of financial evidence and information that the Legal Services Commission would require in order to complete a new financial assessment.