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, WC2A 2LL
		28/03/2018

Mrs Justice McGowan :

1. This is a claim for Interim Relief and an application for permission to bring Judicial Review proceedings. In a claim form dated 19 December 2017 Kinsley Ezeugo, ("the Claimant") seeks Judicial Review of "The Defendant's lack of decision of failure to transfer Substative Certificate Number; HFYFTKE15358/B/J/2 for (Full Representation) TAB-C: p5 to the Claimant's Solicitors-with adequate funding." (sic).
2. The "Respondent" is the Director of Legal Aid Casework. The Claimant also seeks urgent relief, claiming that his family is in "mortal danger".
3. It arises out of a lengthy and complicated history of actions brought by the Claimant. This claim is brought in relation to the conduct of his application for legal aid to bring proceedings against the Commissioner of Police for the Metropolis.
4. A rolled-up hearing was ordered. At that hearing the Claimant requested that all the papers be re-read before judgment was given. I have complied with that request. In further communication by email dated 22 February 2018, he refers to the matter at issue as "a very simple decision, in obviously very simple very narrow issue". I agree with that characterisation.
5. The original claim against the Police was brought on 16 May 2007. In April 2011 the Claimant applied for legal aid to pursue this claim. Since that time the Claimant has been represented by a series of different firms of solicitors during the litigation. A number of legal aid certificates have been granted by the Respondent to those solicitors and the costs limits have, on occasion, been varied upwards.
6. It is unnecessary to set out the detail of the full history of the representation in this case. The sequence of events relevant to this claim begin in July 2017. The Claimant had dispensed with the services of Kaim Todner and wished to instruct Salhan & Co.
7. On 21 November 2017 Salhan & Co completed an application form requesting that the legal aid certificate be transferred to them and that the costs limitation be varied by a substantial increase upwards. Salhan & Co indicated that the case had "good" prospects of achieving a satisfactory outcome, assessed as a 60-80% chance of success. There was already available a negative opinion from counsel about the prospects of success. It is accepted by the Respondent that Salhan & Co may not have been aware of that opinion.
8. At that stage Salhan & Co estimated that the costs up to trial would be £420,000. They set out a task list showing that they would need to carry out 1,152 hours work. They said that without funding they were not able to provide an advice on the merits.
9. That form was considered by the Respondent in the usual way. Further information was sought to enable the Respondent to assess the merits of the claim to vary the current limitation on costs. The Respondent has a duty to consider an application for costs estimated to be likely to exceed £25,000 in the preparatory stage and £75,000 at the hearing under the Special Case Work provisions set out at regulation 54-58 of the Civil Legal Aid (Procedure) Regulations 2012.
10. Regulation 55(2) says, "…Director may make a determination about Special Case Work conditional upon the proposed provider submitting a costed case plan….which

(a) sets out proposals for progressing the Special Case Work; and

(b) identifies- (i) the key stages of the case;

(ii) the form of civil legal services likely to be needed at each key stage;

(iii) the likely costs of each key stage; and

(iv) appropriate intervals for the plan to be checked and adjusted by the provider with the agreement of the Director to reflect the progress of the Special Case Work"

11. Following that consideration the Respondent sent an email to Salhan & Co on 4 December 2017 saying that it would not be possible to complete the transfer of the legal aid certificate to them without the provision of an analysis of the merits of the case. The email contained the additional information "I have previously indicated that I would be prepared to fund obtaining Counsel's opinion on the merits of an application with investigative help only. That remains the position. As long as the costs of doing so are proportionate."
12. This appears to me to be an important point in the course of the legal aid application.
13. On 13 December 2017 Salhan & Co stated that without funding they would not be able to represent the Claimant. They said, "What we are being asked to do is to provide a preliminary opinion on a limited basis. Given the nature of this case and its history, it is simply impossible for us to do this whilst fulfilling our professional oath". They concluded the email saying that would not be able to continue to act.
14. That really is where the matter rests. The Claimant contends that the Respondent made a decision not to transfer the certificate to the firm he has instructed to act on his behalf. Further, that the Respondent made a decision not to increase the costs limit on the funding certificate.
15. The Respondent answers saying that, in fact, no such decisions were made. The Respondent asked, as he is obliged by the Regulations and his duty to the public, for more information to complete this assessment. The same procedure was followed in this case as in any other case of equivalent cost. He offered limited funding to assist in the provision of that further information and that offer was refused.
16. The only decision taken at that stage was by Salhan & Co to decline to continue to act for the Claimant.
17. The Claimant contends that the "decisions" taken by the Respondent were informed by a hostile intent to him and his case. Further that there is a conspiracy between the Respondent and the Metropolitan Police. There is much evidence to the contrary and I do not find that the Claimant has raised evidence capable of proving any such hostile intent. Given that I find that there has not been any public law decision capable of review by this court, the issue of hostile intent does not need to be investigated any further here.
18. Beyond there not being any decision susceptible of review. This claim would be premature in any event. There is an appeal process which the Claimant has declined to pursue. Regulation 44 of the Civil Legal Aid (Procedure) Regulations 2012 provides the Claimant with a right of appeal to an Independent Funding Adjudicator. The application should be made within 14 days but the Respondent is willing to waive the time limit, even now, to enable the Claimant to take the matter to an Independent Adjudicator. There is an adequate alternative remedy.
19. This claim is entirely without foundation. There were no decisions taken by the Respondent that are capable of public law review. All steps taken followed normal procedure. In any event the Claimant has not taken up his right of appeal.
20. This claim is dismissed.