England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		22 February 2013

1. MR JUSTICE HOLMAN: This case has become an unedifying stand-off between the claimant, Mr Dominic Purvis, on the one hand, and the defendants, the Legal Services Commission, on the other. At an earlier stage in these proceedings there may have been merit in the position taken by either party, but the history of the last three and a half months since late October/early November 2012, and the fact that we are all assembled here today, shows what an appalling waste of time and public funds can occur when obduracy on the part of a citizen collides with an entrenched bureaucratic position on the part of the State. The Legal Services Commission will have incurred a sum running into thousands of pounds of counsel's fees and paid staff time by being here today. Mr Purvis has travelled in his own time and at his own expense from Somerset. The cost to the State of providing, staffing and supporting a judge and courtroom here at the Royal Courts of Justice is some thousands of pounds a day.
2. The issue which has effectively occupied me today (although it was not the issue at earlier stages in these proceedings) is whether or not the claimant must fill in and submit a second time an application form which he has already submitted once. The form is not a complicated one. It has many simple tick boxes, and to copy over the information from the first form could hardly take more than 15 or 20 minutes of his or his solicitor's time, and vastly less than the time of travelling between Somerset and London today. But if the position of the claimant has been obstinate and unreasonable, as it has, that of the Legal Services Commission is scarcely less so. They still have his original application. They have known from first to last that he seeks legal aid, subject to resolving issues as to the assessment of his means. They know why he seeks the legal aid and they have already approved the "merits" of parts of his application. They are, of course, entitled to reassurance that there have been no significant or relevant changes since the date of the original form, but there are other ways of establishing that than by repeated insistence that he and his solicitors fill in a fresh form.
3. The essential background to this claim is as follows. The claimant wishes to take proceedings designed to procure the return to England of his son, now aged 6, who he says is being retained against the will of Mr Purvis by the child's mother in America. Separately but concurrently, he wishes to pursue claims for financial remedies in the subsisting divorce proceedings between himself and his wife, who, as I have indicated, now lives in America. He consulted a very well-known firm of family solicitors in Exeter called Hartnell Chanot. I understand from Mr Purvis that the person with whom he has primarily dealt in that firm is a partner, Miss Jane Chanot. Believing him to be eligible for legal aid for the purpose of the proposed proceedings, Hartnell Chanot helped Mr Purvis fill in a Form CLS App 3, namely: "Application for Funding in Family Proceedings", in which he applied for public funding from the Community Legal Service. That form was signed by Mr Purvis as the applicant on 19 February 2012 and countersigned with the required certifications by Jane Chanot on 24 February 2012. The certification by Jane Chanot, being a solicitor, includes that:

"I have provided as accurately as possible all the information requested on this form."

4. The form was received by the Legal Services Commission on 2 March 2012. A case reference number was assigned to it, which for the purposes of this judgment I will abbreviate to IRUP/14. By a letter dated 12 March 2012, now at bundle page D199, the Legal Services Commission informed Mr Purvis that:

"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.

5. It was those two letters of 14 and 19 March 2012 which triggered the present application for judicial review. The claim form was issued by Mr Purvis on 3 April 2012 and in section 3 of the form he expressly identified the decisions of 14 and 19 March 2012 as the decisions to be reviewed. At section 6 of the claim form he wrote:

"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.

6. So the claim for judicial review got underway. There were obviously a number of exchanges of material between the claimant and the Legal Services Commission, and a number of orders of this court made on paper. The first time that there was any hearing within a courtroom was on 30 May 2012 when the claimant appeared before Wyn Williams J, although the Legal Services Commission were not themselves present. However, shortly before that hearing the Legal Services Commission had written another letter dated 24 May 2012. They claimed to have sent that both to Hartnell Chanot in Exeter and also to the claimant at his private address. They also sent a copy of it to the office of this court just before the hearing on 30 May 2012, and it does now seem clear that a copy of it was handed by Wyn Williams J to Mr Purvis during that hearing. At all events, there can be no doubt that by about the end of May 2012 that letter was in the hands of the claimant, for in paragraph 5 of a document dated 7 June 2012, now at bundle pages A39 to 41, he made comments upon the "breakdown of assessment" which itself was attached to, and formed part of, that letter of 24 May 2012. The upshot at that stage was that the Legal Services Commission had reduced their assessment of the claimant's means. They had decided that he was eligible for legal aid and had assessed the required contribution as £138.43 per month. The letter, which rather bewilderingly meanders between use of the singular and plural in relation to Mr Purvis, continues:

"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.

7. The claimant was not prepared to accept that offer, for he considered that the Legal Services Commission were still making errors of law and/or fact in their calculations or in their application of the regulations to the financial data which he had supplied. It is therefore clear, and not in any way gainsaid by the claimant, that that offer was not accepted. Today, Miss Amelia Walker, who has appeared with the utmost eloquence on behalf of the Legal Services Commission, has helpfully drawn my attention to paragraph C15.3 of the Legal Services Commission "Funding Code". That provides so far as is material that:

"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.

8. The next significant event in this case was a hearing here in London before Silber J on 7 August 2012, when the claimant again appeared in person and Miss Walker appeared on behalf of the defendants. Silber J adjourned the hearing of the application for permission to a date which was later fixed as 6 September 2012, and made various directions. On 6 September 2012 there was a further oral hearing here in London, again attended by the claimant in person and Miss Walker on behalf of the defendants. At that hearing, Walker J granted permission to apply for judicial review and gave directions for a substantive hearing. The case came on for substantive hearing before HHJ McKenna, sitting as a judge of the High Court, on 25 October 2012. On that occasion, once again the claimant appeared in person and Miss Walker appeared on behalf of the Legal Services Commission. As I understand it, it was during the course of that hearing that it very clearly emerged that since the commencement of these proceedings, and indeed since the financial assessment which had underpinned the offer of 24 May 2012, there had on any view been some very significant changes in the financial circumstances of the claimant. There appears to have been a hearing of some duration before HHJ McKenna, but it is important to emphasise that, so far as I am aware, no official transcript currently exists of the course of that hearing. I mention that for there has been some dispute today, which I am in no position to resolve, as to exactly what was said by or on behalf of each party, and indeed by the judge himself. But the upshot certainly was an order that "the matter be adjourned generally with liberty to either party to restore". It was clearly contemplated by both sides that the claimant would supply fresh information as to his change of financial circumstances and up-to-date means.
9. Very shortly after that hearing, by an email sent on 29 October 2012, now at supplementary bundle page C 134, the lawyer in the head office of the Legal Services Commission who has been handling this matter, Miss Shahnaz Khan, wrote to the claimant as follows:

"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."

10. Pausing there, the various forms 1, 1A, and 1C are forms for giving details with regard to means. The reference to a form CLS3 is a reference to the initiating "Application for Funding in Family Proceedings" form, which is the very form that the claimant had originally completed and signed jointly with Miss Chanot in February. So, by the reference to a form CLS3, and indeed by her use of the phrases "a fresh application" and "a new substantive application", Miss Khan was making crystal clear to the claimant, and through him to Hartnell Chanot, that the Legal Services Commission now required him, in effect, to start again with, as she said, "a fresh application". The reason for that, as explained in the letter, was a combination of "the change in your circumstances" and "the time that has lapsed since your application in February". Accordingly, the Legal Services Commission were requiring "an update" on the current status of the proceedings and what he was now requiring funding for.
11. The claimant responded and reacted to that letter at once by an email sent back to Miss Khan within, I notice, only about three quarters of a hour after her own email of 29 October. His email, now at supplementary bundle page C132, begins:

"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. ... "

12. I am sorry to record that the reference to "at this time" has persisted in the three and a half months or so between 29 October 2012 and today. Miss Khan repeated on a number of occasions the need, in the view of the Legal Services Commission, for the claimant to fill in a completely fresh application form. She referred to this in a further email of 6 November 2012, now at supplementary bundle page C125, and in a letter which she wrote to this court on 14 November 2012, now at supplementary bundle page C120, and copied also to the claimant. In that letter she said:

"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."

13. Pausing there, the claimant does, I think, accept that the offer that was made on 24 or 25 May 2012 has indeed "lapsed", since he never accepted it either by 21 June 2012 or indeed at all. But he most certainly does not accept that it follows from that that his original application "is no longer valid or current". His position is that the application itself has exactly the same "validity" today as it had when he first made it in late February/early March 2012 and that the application remains entirely "current". In fairness to him, the point needs to be made and emphasised that that is an application which he made and which the Legal Services Commission have known from first to last that he wishes to maintain. His whole purpose in these protracted proceedings has been to achieve a grant of legal aid (albeit there has been a dispute between them as to his liability to make contributions) and he still wishes to achieve a grant of legal aid. So his position is that he made an application last February, and he has never withdrawn it. It is true that he has not accepted the most recent offer upon it, but that is because of the dispute, not as to the merits but as to the assessment of his means. He still wishes his application to be determined after a fresh assessment of his recently supplied current financial information.
14. As recently as 4 February 2013, Miss Khan wrote yet another letter to the claimant, expressly copied to Jane Chanot, now at supplementary bundle page C32, in which Miss Khan said:

"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.

15. Finally, the more local case worker in Bristol wrote a letter to the claimant, also on 5 February 2013, now at supplementary bundle page C18, in which she said:

"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.

16. So far as the changes in the claimant's financial circumstances during the course of these proceedings are concerned, they may, for the purposes of this judgment, be very briefly described. At the date of his application in February/March 2012, the claimant was the sole shareholder in a company called Somerlake Incorporated Limited, which seems effectively to have been an alter ego of himself. He has told me that the business of that company, or of himself operating as that company, was providing technical and entertainment services to the hospitality industry. I understand that he is a qualified electrician and he provided a mixture of electrical services and also operated as a DJ. He also, behind the veil of the company, did some part time freelance work as a courier for the well-known courier company DHL.
17. So it was broadly his method of operation in the form of Somerlake Incorporated Limited, and his income and outgoings in that context, which was the subject of all the disputed assessments up to and including that of May 2012. However, all those issues became completely historical and supremely academic from about July 2012, when he ceased performing those roles or trading as Somerlake Incorporated Limited. Indeed, since about November 2012 Somerlake Incorporated Limited has itself been in liquidation.
18. During last spring he decided instead to embark, in conjunction with a lady (who is present in court today) called Mrs Golab, in the business of running a sandwich shop in Chard, Somerset. He and Mrs Golab incorporated during April 2012 a company called Blue Donkey Catering Limited, in which they each own 50 per cent of the shares. The business of that company was to run the sandwich shop in Chard under a trading name Tiki Hut. He says that he and Mrs Golab are co-directors of the business and he was the manager of the shop. That opened in the second week of July 2012. Unfortunately for Mr Purvis and Mrs Golab, they appear to have had some difficulties in relation to their landlord and the lease of the premises. The upshot is that the Tiki Hut sandwich shop closed down and the business ceased to trade in late December 2012. Whilst I do not in any way whatsoever myself investigate the financial circumstances of the claimant, he has said today that he currently has no income. So, in summary, there have been at least two profound changes since the financial circumstances and situation which gave rise to the present judicial review. First of all, last summer the whole business of Somerlake Incorporated Limited and its activities came to a complete end. More recently, and unfortunately, the whole business of Tiki Hut sandwich shop and the activities of Blue Donkey Catering Limited have come to a complete end.
19. It will be recalled that the decisions under challenge by the present claim for judicial review were decisions made in March 2012. Whether formally or otherwise, the focus of the present claim for judicial review clearly shifted without any opposition by the Legal Services Commission onto the legality and rationality of the later assessment made in the letter of 24 May 2012 and the attached "breakdown of assessment documents". But just as any assessments made in March became completely academic, so also the whole of that assessment made in May 2012 has now on any view become completely academic. There has not been a subsequent or more recent assessment because up to and including today the battle lines have been drawn that the Legal Services Commission have declined to undertake a fresh financial assessment unless and until the claimant completes and supplies to them a fresh recent form CSL3; whilst he, on the other hand, resolutely declines to complete any such form.
20. So the substance of the present claim for judicial review is, in essence, all about financial assessment. There simply is no subsisting decision about financial assessment which is capable of continuing review by this court. Judicial review is a discretionary remedy. Generally, a court will not make decisions on issues which are or have become academic. There may be rare exceptions to that when a case raises issues of widespread public importance upon which it is desirable to obtain a ruling even though the issue no longer persists between the particular parties to the proceedings. But this is not such a case. Further, in this case, as in all civil proceedings, the court is subject to the overriding objective in Part 1.1 of the Civil Procedure Rules and a duty actively to manage cases to ensure costs proportionality and a proportionate use of the resources of the court.
21. In my judgment, there is nothing left in the present claim that requires any continuing or further consideration by this court. Application of the overriding objective, and the broad approach that the court does not rule upon issues that have become academic, requires that I dismiss this claim for judicial review, and I will do so.
22. The problem, of course, is where does that leave these, frankly, warring parties? It is now 3.50 pm and effectively I, together with the claimant and Miss Walker, have spent the whole of this day in discussion around the topic of whether or not the claimant needs to complete and submit a fresh form CLS3 in order to advance an application for the provision of public funding. His position, as I have already stated, is that he already has an existing CLS3. He says that there has been no change in the objectives of his proposed proceedings, whether in relation to his son in America or matrimonial financial relief. He has already submitted the various CLS means forms and he now seeks that the Legal Services Commission get on with assessing his means and his financial eligibility and any required contribution.
23. When asked why on earth he and/or his solicitors did not cut through this current dispute by compliantly filling in a fresh form after the email letter of Miss Khan of 29 October 2012, Mr Purvis seems to give two reasons. One is a concern that he might lose the benefit of the favourable merits assessment that he had already obtained and is recorded in the letter of 12 March 2012. The other seems to be some stubborn insistence that, as he has already filled in the form once, he should not be put to the trouble of doing so again. He couples that with telling me today that in taking that stance he has been acting on the advice of the solicitor, Miss Chanot. I have repeatedly explained to Mr Purvis that I cannot go into what advice he may or may not have been given by Miss Chanot, since that is the subject of legal professional privilege. But as I have been, and remain, critical of Mr Purvis for being stubborn, it is only right that I should record that he does say that he has been advised or encouraged to take that entrenched position by his solicitor. So that is the position of Mr Purvis.
24. On the other side, I have repeatedly asked Miss Walker, and indeed Miss Khan, who is in the courtroom, why do they really have to insist on a fresh CLS3 in this case? I perfectly understand that their procedures and orderly bureaucracy may ordinarily dictate the filling in of a fresh form after an appreciable delay. On the other hand, bureaucrats do have to deal with individual citizens and individual human beings. The fact is that they know that they have been locked in conflict with this claimant, Mr Purvis, for about 11 months now. Colossal expenditure has already been incurred on these proceedings, little or any of which they have much prospect of recovering. The real dispute between Mr Purvis and the Legal Services Commission has always been around his financial circumstances and assessment of his means. There has never been a dispute as to the merits aspects of his claim. Of course they are entitled to know, and require to know, whether there have been material changes in circumstances, but it seems to me that there were and are alternative methods by which, in this particular case, they could find that out. If the offer of legal aid had been accepted and Hartnell Chanot had commenced acting for Mr Purvis, Hartnell Chanot would have been under a continuing duty to notify the Legal Services Commission of any significant or material changes, and generally to keep them informed of the progress of the underlying proceedings and of any reappraisal of the prospects of success.
25. I cannot for the life of me see why, faced with the admitted obduracy of Mr Purvis, the Legal Services Commission could not in this particular case have adopted the alternative course of writing directly to Hartnell Chanot and asking them to certify, if it be the case, that there have been no material changes since the application form which they themselves signed on 24 February 2012, or, if there have been any changes, to describe them.
26. The version of the form CLS3 which was actually submitted in February 2012 is one described as "Version 17, February 2012". By now, in the way these things go, the Legal Services Commission form CLS3 has moved on to "Version 18", which dates from October 2012. In the time available today, I and Miss Walker and Miss Khan have scrutinised versions 17 and 18 of that form, and so far as we have been able to discern, there is only one difference between the two forms. That is to be found on page 11 of the form under the heading "Exercise of Devolved Powers". In the middle of that page there is a tick box in relation to costs limitations. In the February version of the form the stated limitation beside that box is £1,500. In the October version of the form the stated limitation is £1,350. There has therefore been a reduction of £150 in the costs limitation in circumstances of the exercise of devolved powers. So, submits Miss Walker, it is extremely important that an up-to-date form is used.
27. To my mind, this particular point borders on the absurd. In the first place, it is fantastic that thousands of pounds should be spent by being here today on a difference in costs limitation of £150. But in the second place, and far more significantly, there has been no request for the exercise of devolved powers in this case, and the whole of page 11 was clearly crossed out on the form which Mr Purvis and the solicitor completed in February 2012. In other words, since the exercise of the devolved powers is not in point, it does not make a row of beans difference whether the version of the form that dates from February 2012 or the version from October 2012 is used. But it is on such niceties that some of the time today has been spent.
28. I have already dismissed the current proceedings for judicial review for the reasons that I have given. It is not, therefore, ultimately open to me to make any orders as to the future progress of this application for legal aid. I have tried and tried and tried during the course of today to get these two parties to see the obduracy of their respective position, to apply some common sense, and to find a way forward. I do know that during lunchtime today there was a telephone conversation between Miss Khan and the secretary of Miss Chanot, although, unfortunately, Miss Chanot personally was not available. I can only urge that they find a means to avoid one disaster, namely these catastrophically expensive proceedings, being compounded by another disaster. It is patent that Mr Purvis has claims against his wife that he wishes to pursue which, if not the same, are certainly broadly the same as the claims which have already received merits approval. On the other hand, there must inevitably have been changes in the landscape of those claims between last February and now. Indeed, I know that there has been at least one procedural order in the underlying proceedings for financial remedies, for there is within the papers an order made in the Exeter County Court by District Judge Richards on 21 January 2013. Mr Purvis needs clearly to understand that the Legal Services Commission have a duty to apply public funds correctly and properly. They have a duty continuously to satisfy themselves as to the merits of any claim which they offer to fund or are funding. So the desire of the Legal Services Commission to be assured as to the current circumstances of the proposed claims, and as to the current prospects of success of those claims, is not only an eminently reasonable one but it is one which they are under an obvious duty to ensure. If he remains obdurate and does not co-operate with reasonable requests, he will continue to find that he receives no offer of public funding. That said, and as I have already explained, there may be more than one way in the particular circumstances of this case whereby the Legal Services Commission can properly inform themselves as to the current circumstances of the proposed claims and as to their merits, and it remains the case that they have before them an application for public funding which was submitted last February which Mr Purvis has never withdrawn and which he desires to have resolved.
29. So, Miss Walker, the order is going to be a very simple one liner, really: Upon hearing the claimant in person and counsel on behalf of the Legal Services Commission, the claim for judicial review is dismissed. But I want to add these words: "without consideration of the merits, on the grounds that there have been so many changes in the claimant's financial circumstances that the whole of the existing claim has become academic."
30. Are there any other applications that either of you wish to make?
31. MISS WALKER: My Lord, I do not know if you wish to hear from Mr Purvis first.
32. MR JUSTICE HOLMAN: I do not mind who goes first. I do not want anybody to develop an application, I want to know if either of you have any applications you wish to make.
33. THE CLAIMANT: Sir, I would like to ask for a written transcript of your judgment.
34. MR JUSTICE HOLMAN: You will get one.
35. THE CLAIMANT: At public expense.
36. MR JUSTICE HOLMAN: You will get one.
37. THE CLAIMANT: Thank you.
38. MR JUSTICE HOLMAN: That is not giving you an indulgence, they just are automatically transcribed. But you do not get it tomorrow, it might take some weeks.
39. THE CLAIMANT: No, but at public expense?
40. MR JUSTICE HOLMAN: Yes, it is part of the services of the court. It is part of the bill to the State of being here today.
41. THE CLAIMANT: Thank you.
42. MISS WALKER: My Lord, you have dismissed the application, I do not have a statement of costs but the application the LSC would make would be in respect of the costs of meeting this application.
43. MR JUSTICE HOLMAN: From what date?
44. MISS WALKER: Well, my Lord, I do not have a costs statement.
45. MR JUSTICE HOLMAN: No, but on the principle of the matter.
46. MISS WALKER: My Lord, up until today's date, the reason that costs would be sought, although there has been no determination of the merits, is because, in fact, prior to the date that Silber J first heard the matter -- the matter was heard on 6 August -- Mr Purvis' financial position had already changed.
47. MR JUSTICE HOLMAN: When did he first tell you it had changed?
48. MISS WALKER: He first told us it had changed on 25 October and therefore during the currency of these proceedings there would actually have been no necessity to make this application whatsoever.
49. MR JUSTICE HOLMAN: So you are saying that when, for instance, Walker J granted permission, the date of which just escapes me, it was early September, you had no knowledge that he was not still trading as Somerlake Incorporated Limited, being an electrician and a DJ and a courier?
50. MISS WALKER: No, my Lord. No suggestion of any change of financial circumstances was made until 25 October.
51. MR JUSTICE HOLMAN: So what you are saying is if he had come up front and told you that, Walker J would never have granted permission and would have said it is all completely academic.
52. MISS WALKER: At that stage, yes, my Lord. If that had been a matter that the LSC was aware of then it would have been a matter that was, obviously, completely academic as at that stage, and if Mr Purvis had chosen to proceed, it would, of course, been obvious that --
53. MR JUSTICE HOLMAN: But you, presumably, resisted the grant of permission at the hearing in September?
54. MISS WALKER: Yes, on the basis that the financial circumstances as we understood them to be in August, which was only a few months after the offer had been made for legal aid funding, where as per --
55. MR JUSTICE HOLMAN: Quite. So you resisted the grant of permission saying, "We stand by the way we have assessed this and we think we were right."
56. MISS WALKER: Yes, My Lord.
57. MR JUSTICE HOLMAN: And what you are saying is if he had told you then, "I am not even any longer an electrician, a DJ and a courier, and Somerlake has packed up, and I am now running a sandwich bar and everything has changed," you would have said, "Well, that is another cast iron reason for not granting permission because this has all become academic," everything that I have just been saying, in fact, "and there is no continuing purpose in that judicial review". That is your point.
58. MISS WALKER: Yes, my Lord, and if Walker J had still considered that there was a necessity of exploring the application of Regulation 17.1(b), which is why we proceeded up to date, or at least to 25 October --
59. MR JUSTICE HOLMAN: But there would not have been, because that was in the particular circumstances of Somerlake Incorporated.
60. MISS WALKER: Exactly. So there would have been, as you say, a cast iron reason not to proceed with the claim, and at each stage the matter has returned to court, in fact, even just prior to 25 October, no indications of any change of financial circumstances was made. It was only made by Mr Purvis part way through 25 October 2012, at which stage HHJ McKenna's decision was that there may be a way to simply look at the financial circumstances, and, of course, following on from that, the Legal Services Commission indicated that given the lapse of time it was necessary to look at the merits. On which point, my Lord, I do not want to go back on to the point of the judgment but I hope that the point I was not making was that it was important to be tied to the form. What I had said earlier was if there was --
61. MR JUSTICE HOLMAN: You did make that point, which is why we scrutinised it.
62. MISS WALKER: My Lord, I had not said that the actual form itself was important, it was what the solicitors could confirm, which was the any change in circumstance and also to certify that form and any change of circumstance had been discussed with Mr Purvis.
63. MR JUSTICE HOLMAN: No, you made a separate point that there was now a new form, and that is why we scrutinised it.
64. MISS WALKER: My Lord, that was only on instructions I said "and there is a new form," I did also say --
65. MR JUSTICE HOLMAN: Maybe it was only on instructions, but it was a point you made, which is why I scrutinised it.
66. MISS WALKER: I did also say in as far as that is actually relevant, because I do not think that was the relevant point, the relevant point is that the solicitors have been asked by way of a copied correspondence of 4 February, which was only a few days after Mr Purvis actually submitted --
67. MR JUSTICE HOLMAN: Anyway, I do not want to go over all of that again now. Your basic point is I have held this is academic and it has been academic since Somerlake Incorporated went under and the sandwich shop started.
68. MISS WALKER: Yes, it has certainly been academic since July 2012, which is what you recorded in your judgment. That was the date at which any consideration of drawings would have been irrelevant. Now, Mr Purvis could have proceeded, and could have continued to make applications but the court would have said this is an academic point.
69. MR JUSTICE HOLMAN: And you say that the Legal Services Commission were not given any information or notice until actually in court on 25 October that he was no longer Somerlake Incorporated and he was now running the sandwich shop et cetera.
70. MISS WALKER: Yes, and, my Lord, the separate point is that irrespective of whether or not Mr Purvis had incorporated a company, Mr Purvis' clear statement was that his financial situation had worsened. So, in fact, if his financial situation had worsened, the Legal Services Commission would have taken that into account and would have considered that, presumably on an application, as suggested by Mr Purvis, if he had said, "Actually, my income is less than it was," irrespective of whether or not the company was still incorporated, the question is what would be an accurate assessment of his income, and it was never going to be an accurate assessment of his income when a company which was where the income was drawn from was not incorporated but, in any event, if he said his income was actually less than it was --
71. MR JUSTICE HOLMAN: Sorry, I am not following. Is this not just making the same point in another way?
72. MISS WALKER: Well, it is, except that irrespective of whether or not the company was incorporated, if Mr Purvis could evidence between May and 25 October 2012 that overall his financial situation had changed ie he was not earning as much money in from the company as he said he was, then that may also have been a reason to make the actual claim itself academic.
73. MR JUSTICE HOLMAN: Just so I am clear, he supplied financial information -- going right back to the beginning -- you asked for various bits of further information, which he did or did not supply, whatever, you make an assessment as at 24 May, which can only have been made on the basis of information supplied prior to that date.
74. MISS WALKER: Yes.
75. MR JUSTICE HOLMAN: We now know that there have been all sorts of changes in his circumstances subsequent to 24 May. Is there any document either inside or indeed outside the proceedings between 24 May, or thereabouts, and 25 October when he notified the Legal Services Commission of any change in his, essentially, financial circumstances?
76. MISS WALKER: Not that I am aware of, my Lord. It may be that Mr Purvis could --
77. MR JUSTICE HOLMAN: He can show us, but the basis of your application is: the judge today has just said this is all completely academic, which it is, and in fact it is a complete waste of time and money, and the reason for that is there has been such a complete change in the financial circumstances. You are saying that what I have said today has actually been true, we now know, since sometime at any rate around about July, but he never even told you there had been a change until October. That is your position. Therefore, you say these proceedings, if he had told you there had been these raft of changes, you would have reassessed him anyway, who knows what the outcome of that would have been, but you would have reassessed him, yes?
78. MISS WALKER: The offer had lapsed but it would have been certainly beyond lapsed, it would have been withdrawn because it would have been clear he would -- at that stage I imagine the LSC would have said you need to make a fresh application for funding.
79. MR JUSTICE HOLMAN: There might had been that dispute, but that point apart, you would have said the existing assessment, obviously, could not stand.
80. MISS WALKER: Yes.
81. MR JUSTICE HOLMAN: All right. Now let us see if Mr Purvis can produce the documents where he told you about the change of his means.
82. MISS WALKER: My Lord, the second point, though, is that irrespective of that, the merits part of this particular application was permission was granted, at the 25 October 2012 hearing HHJ McKenna made it clear that one of the primary objections that Mr Purvis made was to actually using the drawings from what was effectively --
83. MR JUSTICE HOLMAN: What?
84. MISS WALKER: Sorry. Using the drawings, his drawing from the company, and HHJ McKenna was very clear that that was not either unlawful or unreasonable, and the LSC was entitled to do that.
85. MR JUSTICE HOLMAN: Well, HHJ McKenna did not dismiss the claim, did he?
86. MISS WALKER: No, he did not, my Lord.
87. MR JUSTICE HOLMAN: He did not adjudicate upon it.
88. MISS WALKER: He chose to see if there was another way.
89. MR JUSTICE HOLMAN: If he thought the claim was legally wrong, he could there and then have given a judgment and dismissed it but for some reason he did not. I am not going now in relation to costs to start getting sucked into 25 or 30 pages of your skeleton argument on all these Regulations and all the rest of it on all the points that were in issue. That is days of time. But your short point is this has been academic, we now know, since July and he did not tell you.
90. MISS WALKER: Yes.
91. MR JUSTICE HOLMAN: So where did you tell them, Mr Purvis?
92. THE CLAIMANT: For a start, up until 25 October this claim was entirely about challenging the legality of an assessment that was made in anywhere between March and May. There was never any suggestion at all -- it was purely to challenge the legality and the rationale of the assessment at that point in time, at the point of issue of the review, and that is what the permission was granted on.
93. MR JUSTICE HOLMAN: Yes, but the permission was granted, Miss Walker says, on an assumption and belief on the part of the Legal Services Commission, and indeed the judge, that your essential financial structure was still the same then as it had been at the time of the assessment up to and including 24 May.
94. THE CLAIMANT: No, the judge made a very clear assertion at the time and said that no new information could be introduced after the date of the issue of the review, he could only consider matters up to and including the date of issue, nothing afterwards. When it got to Judge McKenna in October --
95. MR JUSTICE HOLMAN: Do you have a copy of his judgment?
96. THE CLAIMANT: We don't but, I mean, that is a well-known and practised fact in judicial review, you cannot introduce evidence afterwards.
97. MR JUSTICE HOLMAN: Not at all. I would not accept that proposition at all. Many judicial reviews are in situations where the facts are evolving, and if they have evolved, account must be taken of the facts as they are.
98. THE CLAIMANT: But the initial challenge was purely on the basis that those two original assessments which you have referred to in your summing-up were challengeable, and that is what permission was granted on, it was granted on the fact that there was merit in the challenge of those two decisions, because there had been several decisions by then, all of which had different figures, the judge made a very specific point that there seems to be arguable issues because the calculations kept evolving. The LSC, by this time --
99. MR JUSTICE HOLMAN: Mr Purvis, I simply do not follow. Assume for a moment that on 6 September -- let us make two alternative assumptions: one was that by then you had had a terrific win on the pools and were a millionaire. Nobody in a million years would have allowed this judicial review to go on. That is one way of looking at it, and let us now look at an alternative way, that you had had all sorts of financial reverses, -- and let us just say, if you will forgive me putting it this way -- you had experienced some very bad accident or ill health, you were completely disabled from working at all and you were solely dependent on basic State benefits, and on that basis it would not have made a row of beans difference about being a DJ or anything else back in March, you would be a man then on State benefits. This is a judicial review which has absolutely no point or purpose, save on the footing that the financial facts were, at any rate broadly, the same. Obviously, your income might have gone up or down from one day to the next but the broad financial structure was the same.
100. THE CLAIMANT: Well, the dates are entirely relevant because Somerlake was not started to be dissolved until November and, in fact, in Neil Goss' last witness statements that he has put forward he acknowledges that, that Somerlake did not -- it was trading alongside the shop. I did not receive a bean from that sandwich shop apart from, I think, as the Legal Services have been made aware and have been put in the latest bundle as well, a letter from Mrs Golab, who has examined all the accounts and bank statement and said exactly what I was paid from that shop.
101. MR JUSTICE HOLMAN: You told me that Somerlake, those activities, ceased in July.
102. THE CLAIMANT: No, the activities did not cease in July. No, I said the shop opened in July.
103. MR JUSTICE HOLMAN: No, you also told me that the activities, being an electrician and a DJ and a courier, ceased in July.
104. THE CLAIMANT: No, no.
105. MR JUSTICE HOLMAN: You did.
106. THE CLAIMANT: The limited company started its dissolution in November. The application was put in at the beginning of November. In fact, it still is not entirely dissolved, it has to have 3 months clear of non-trading before it will be taken off the register, which is pretty much up now. But the activities continued through and, as I said to you previously, from the November time I have carried on doing it but in my own right, not under the limited company umbrella, if you like. But that ran alongside the shop and by the nature of what the business is, and the entertainment, it is mainly evenings, weekends et cetera when I was not working at the shop. And, indeed, on the fit-out of the shop I carried out the electrical works, which was invoiced to the shop, which is still owing to me because, as I say, the shop are not in a position to pay me until -- so I carried on doing that work just to keep me ticking along, if you like.
107. MR JUSTICE HOLMAN: Was that you or Somerlake?
108. THE CLAIMANT: It was Somerlake up until November, up to the beginning of November and then from November until December I haven't done anything since January but --
109. MR JUSTICE HOLMAN: On any view, there was a profound change in your financial structure when you started the shop.
110. THE CLAIMANT: Yes, in a downturn, but what happened --
111. MR JUSTICE HOLMAN: It was a downturn, yes, but the effect --
112. THE CLAIMANT: But what happened is, this was -- when it got to Judge McKenna in October, this was something that I mentioned right at the end because he dealt with -- all the way through those proceedings he's saying, "Look, you need to apply common sense, you need to apply common sense et cetera," much as you have done today, and I said to him later on, I said in any event, I said, if I was to apply again now my circumstances would be substantially different. This is when the Regulation 15 was raised because he said there is this provision that this can happen and he said, "Just from a pragmatic point of view, isn't that the way forward, just to submit what your new finances are because [he said] that will probably help you in your application and that is the pragmatic way forward," which is why he adjourned it with the liberty to restore because he said, "Go away, both of you, go and find that pragmatic solution". This obviously did not happen.
113. MR JUSTICE HOLMAN: No, and it did not happen because you did not fill in the CLS3. That was the only thing that stood in the way.
114. THE CLAIMANT: Well, yes, but, I mean, as we've -- I believe there's blame on both sides because that wasn't a form for me to fill it, I filled in all the forms I could have done myself.
115. MR JUSTICE HOLMAN: It was for you or your agent, your solicitor.
116. THE CLAIMANT: Well, myself or my agent but, as I say, I can only go on advice from solicitors, I'm the lay person, you know, acting in person. As we are well aware, the Legal Services seem to have somewhat unlimited funding and resources to allocate vast amounts of time to this and, you know, when I'm confronted will, well, what previously at Judge McKenna's hearing has been probably seven or eight advisers to Miss Walker --
117. MR JUSTICE HOLMAN: What do you mean?
118. THE CLAIMANT: As I say, there's Miss Khan, Mr Goss, plus about three or four others in the courtroom with them.
119. MR JUSTICE HOLMAN: Oh, you mean a packed courtroom.
120. MISS WALKER: My Lord, I am afraid there was only three of us. It may have seemed packed.
121. THE CLAIMANT: You know, it is very intimidating for myself. I have done --
122. MR JUSTICE HOLMAN: All right, look, Miss Walker, what is the reality here? You are not going to get any money anyway.
123. MISS WALKER: The reality, my Lord, is that even if Somerlake was not being wound up or there was no -- sorry, even if there was no further trading in Somerlake from July 2012, the fact is that the Blue Donkey Catering Limited, and is due to a new company certainly was not -- the incorporation of a new company and therefore potentially a new source of income was not alerted to the Legal Services Commissions, and that was a fundamental change in circumstances.
124. MR JUSTICE HOLMAN: I am afraid I am going to say no order as to costs. This has been a disastrous piece of litigation. I am not, frankly, impressed by the position of either side in recent months. I see the weight of the point that you are making, but this is a piece of litigation that should have been snuffed out a long time ago. It may indeed be, even, that there was a less rigorous approach from the bench than there should have been. So I am going to say no order as to costs, save any that have that already been ordered. If you have already got any costs orders on discreet aspects?
125. MISS WALKER: No, there are no costs orders.
126. MR JUSTICE HOLMAN: Then there is no order. Could you draft that into the order.
127. MISS WALKER: Thank you, my Lord.