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
		Wednesday, 17 December 2014

See: [2016] EWCA Civ 571




THE DEPUTY JUDGE:

1. The Applicant, Mr Cleland, seeks permission to apply for judicial review of assessments of his income and capital contributions for legal aid, having provided new information.
2. In 2011, Mr Cleland sought legal aid as he was facing prosecution for being part of a conspiracy to evade duty on cigarettes. He was granted legal aid with contribution orders. An Income Contribution Order was made on 8 June 2011 in respect of sums that would need to be contributed towards the legal aid. The ICO, or Income Contribution Order, was varied by letter dated 15 August 2011, a letter which referred to the procedure for seeking a review on the grounds of hardship. There does not appear to have been any application on that basis.
3. Mrs Cleland, who has spoken for her husband before me this afternoon, has referred me to her letters of 14 August and 7 October 2013, but as is submitted on behalf of the Agency, it cannot reasonably be argued that the Agency was obliged when considering its ICO in June 2011 to reflect changes in the circumstances notified in 2013.
4. A Capital Contribution Order was made on 28 December 2012, which was replaced by a further order because of a defect, on 23 January 2013. Mr Cleland through his wife in his submissions does not criticise that order insofar as it related to his alleged equity in his home.
5. The challenge that is sought to be raised is to £30,050.54 which was calculated to be savings available to Mr Cleland, taking into account monies available belonging to his wife which were not, under regulation, to be excluded from calculation.
6. As I understood Mrs Cleland to submit this afternoon, there had been money which, at the time of the original ICO, had been frozen pursuant to presumably an order obtained by the Revenue who was complaining about evasion of duty. It is right that in June 2012 she received £18,000 back from the Revenue in that regard, which she thereafter withdrew in cash from that account and applied for meeting various domestic bills and keeping the family together.
7. This is a renewed application for permission to appeal. Permission was refused on paper by His Honour Judge Worster on 6 November 2014.
8. At paragraph 2 of his reasons for refusing, he noted that the calculations of the Income and Capital Contribution Orders were made in accordance with the material regulations (on information supplied by Mr Cleland and his wife when he applied for legal aid). Judge Worster observed that it may be reasonably arguable that there were changes in the financial circumstances of the Claimant, it was not reasonably arguable the Defendant was obliged to reflect those changes in its calculations. The point is made against Mr Cleland that he failed to notify the Agency of those changes when he was obliged to do so pursuant to the Criminal Defence Service (Contribution Orders) Regulations 2009 or to make the appropriate application for reassessment.
9. It does appear to me that the Agency has fairly understood this application for judicial review to be a application challenging the existing orders, including the Capital Contribution Order, and not to have understood it to be an application formed by Mr Cleland to review the orders through relevant changes in circumstances. The judicial review application was clearly so understood by His Honour Judge Worster and is in fact so understood by me.
10. Mr Ormondroyd on behalf of the Agency makes the point that the Capital Contribution Order date for calculation was the date of the application for the representation order and so the resource then, if frozen by the Revenue, was to be taken into account.
11. A second point is taken by Mr Ormondroyd that there had been a failure to notify a change in financial circumstances. Mrs Cleland has pointed out her subsequent correspondence which did suggest that money was no longer available to Mr Cleland, but that does not appear to me to have been an application for review of one of the orders initially made under the Regulations and one which the Agency has not properly or not lawfully dealt with.
12. The point made by Mr Ormondroyd in reference to Regulation 26 of the 2009 Regulations is that the Clelands may have deprived themselves of relevant resources which that had been or were part of the Capital Contribution Order.

I am not persuaded they have done that. I am not persuaded that is the reason why an application for judicial review should not proceed. I have decided that I have no grounds for departing from the written reasons of His Honour Judge Worster and that the renewed application for permission to appeal in this case fails.

13. To summarise what I have been seeking to say in the latter part of this judgment, insofar as the Capital Contribution Order has continued to treat Mr Cleland as having had savings of the order of £30,000 when monies unfrozen by the Revenue in 2012 were spent on necessary living matters, then the problem where the Clelands are concerned is they failed under the Regulations to seek a proper review of the December 2012 Capital Contribution Order when it was made further to its review provision in January 2013.
14. The Respondent Agency in the initial grounds of opposition pointed out that this application for judicial review is probably, against that background, long out of time. I suspect that may well be right, but His Honour Judge Worster and to be fair to him Mr Ormondroyd today, did not seek to place the Agency's resistance to the application to appeal on the grounds that this is out of time.
15. In all the circumstances, I did not consider that, in effect, the £30,000 that formed part of the Capital Contribution Order to which Mr Cleland through his wife objects to me today, is a reason for granting permission to seek judicial review of the Capital Contribution Order that was made in this case in December 2012, as varied in January 2013.

Thank you. Any other application, Mr Ormondroyd?

MR ORMONDROYD: Yes. Well, the costs of the acknowledgment of service were awarded by His Honour Judge Worster in the sum of £847.

THE DEPUTY JUDGE: Well, I am not reviewing that order.

MR ORMONDROYD: I am so sorry?

THE DEPUTY JUDGE: I am not reviewing that order.

MR ORMONDROYD: The Claimant has sought a reconsideration of it.

THE DEPUTY JUDGE: Well, I see no reason to reconsider it.

MR ORMONDROYD: Well, my Lord, I am certainly not going to persuade you to do that. I am grateful.

THE DEPUTY JUDGE: Yes. Thank you.

MR ORMONDROYD: To be fair to the Claimant, he has put in a letter with some detailed points on that order and the amounts in it. I would not want that to get overlooked.

THE DEPUTY JUDGE: Right. Tell me where that is.

MR ORMONDROYD: It is a letter dated 12 November.

THE DEPUTY JUDGE: That is to be found --

MR ORMONDROYD: I do not know where it would be in your Lordship's papers. I have got my own copy that perhaps I could just hand up to you.

THE DEPUTY JUDGE: No, I have got it. I have it.

It is the one that acknowledged the decision of Judge Worster and asked for reconsideration by the full court and a cheque for £350.

MR ORMONDROYD: Yes.

THE DEPUTY JUDGE: Mr Cleland points out, in a style which I might recognise as that of Mrs Cleland but nothing turns on that, that part of the costs related to the time point and that was not the basis on which Judge Worster refused permission to appeal. He or she also points out that this might have been an arguable case for a change in circumstances. She also argued that the Agency through staff involved are fixed and that the Agency has not had to incur additional costs to deal with this matter.

MR ORMONDROYD: My Lord.

THE DEPUTY JUDGE: As a to third point, I do not see any reason in principle why the Agency cannot recover its reasonable costs in dealing with this application.

In relation to the second point where the judge had found there was an arguable case of a change of circumstances, that was a point that he then went onto explain was not material and I referred to that earlier. Mr Cleland had not applied formally or made a relevant application for review and that is not a matter that has to be understood to be subject to the current application for judicial review. As for the first point, the out of time point, I have acknowledged that that was not taken by Judge Worster on 6 November 2014 and was not put anywhere near the forefront of any submissions to me by Mr Ormondroyd, but the point there is that this court has made no finding on the question as to whether the matter would be out of time or whether there should be an extension of time for the making of this application. Therefore, for me to make what is an issue based order in relation to the out of time point is difficult because that might have been appropriate if, in the case of a finding by Judge Worster or indeed a finding by me, that were relevant to whether there was an arguable case for judicial review, an extension of time for making the review application would be made.

The sum involved as ordered by Judge Worster was £847. Despite the reluctance I have mentioned to make an issue based order, it does appear to me that matters have turned both before Judge Worster and me on fairly narrow grounds. It may be that the just course is not to allow the Defendant Agency all its costs.Judge Worster had indicated that there would be 14 days for Mr Cleland to notify the court in writing of a challenge to the costs order. The letter of 12 November 2014 I take as a letter so written. The question is whether the objection to the payment of costs or to the amount to be paid in either case.I think in the light of the reasons given on 12 November 2014 as I sought to analyse them, it would be appropriate to reduce the costs order to £500.

Thank you, Mr Ormondroyd, for reminding me of the letter of 12 November.

MR ORMONDROYD: I did not catch that last comment.

THE DEPUTY JUDGE: Thank you for reminding me of the letter of 12 November.

MR ORMONDROYD: Yes.

Can I thank you on behalf of my clients, also on behalf of the Clelands and also to the court staff for sitting so late?

THE DEPUTY JUDGE: Sorry?

MR ORMONDROYD: Can I just thank you for sitting so late and to the court staff as well?

THE DEPUTY JUDGE: Well, I probably did not get through the list fast enough.

MR ORMONDROYD: Well.

THE DEPUTY JUDGE: Can I surrender these documents?

The parties should feel free to leave court.

MR ORMONDROYD: Thank you, my Lord.