Jersey Unreported Judgments

Debt - application for leave to bring judicial review proceedings against the Law Society and others.

[2018]JRC010

Royal Court

(Samedi)

16 January 2018

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff
Between	Shane Michael Holmes		Applicant
And	The Law Society of Jersey		First Respondent
And	Bâtonnier		Second Respondent
And	H M Attorney General		Intervenor

Mr S. M. Holmes appeared in person.

Advocate J. D. Kelleher for Bâtonnier and The Law Society.

H M Attorney General appeared in person.

Advocate H. J. Heath as Amicus curiae.

judgment

the deputy bailiff:

1.        This is an application by Shane Holmes ("Mr Holmes") for leave to bring judicial review proceedings against The Law Society of Jersey and the Bâtonnier ("the Law Society" and "the Bâtonnier" respectively) arising out of Mr Holmes's attempts to secure or continue to have legal aid and the decisions made by or on behalf of the Bâtonnier in that regard. 

2.        Mr Holmes' application deals with not only specific decisions made on applications for legal aid made by him but also the system of legal aid in Jersey in more general terms.  As a result Her Majesty's Attorney General has been given notice of the application and has successfully sought leave to intervene so that he can address the systemic issues that arise out of this application.  Lastly, because Mr Holmes is a litigant in person and the matters are of some complexity, the Court appointed Advocate Heath as amicus curiae. 

3.        Originally, Mr Holmes brought three applications but as all of the applications appeared to raise similar or linked issues, the Court directed that a consolidated application should be presented by Mr Holmes.  Mr Holmes accordingly seeks leave for judicial review and that consolidated application is resisted by the Law Society, the Bâtonnier and by the Attorney General. 

The law on leave

4.        The test for granting leave to apply for judicial review is not controversial and is accepted by the parties. 

5.        In Sharma-v-Brown-Antoine [2006] UK PC 57 Lord Bingham set out the grounds on which a court would refuse a claim for judicial review in the following terms:-

"The ordinary rule was that the court would refuse leave to claim judicial review unless it was satisfied there was an arguable ground for judicial review having a real prospect of success and not subject to a discretionary bar, such as delay or an alternative remedy.  ...." 

6.        That test is echoed in the Jersey case of Yates-v-Minister for Planning and Environment [2006] JRC 167 in which Sir Philip Bailhache, Bailiff, stated:-

"In order to obtain leave the applicants have to show that they have an arguable case that a ground for seeking judicial review exists which merits a full investigation at a full oral hearing with all the parties and all the relevant evidence." 

7.        Further comment as to the approach of the court is to be found in the earlier case of R-v-Inland Revenue Commissioners Ex P National Federation of Self-Employed and Small Businesses Limited [1982] AC 617 in which Lord Diplock, in considering the purpose of the leave stage of an application for judicial review, at page 642, said:-

"The need for leave to start proceedings for remedies in public law is not new.  It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations.  Its purpose is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public offices and authorities might be left as to whether they could safely proceed with administrative action whilst proceedings for judicial review of it were actually pending even though misconceived."  

8.        Accordingly I approach the arguments on the basis that this is a threshold stage designed to eliminate claims that are hopeless, frivolous or trivial and to ensure that the claims only proceed if there is an arguable case that merits a full hearing with all parties and all relevant evidence. 

The consolidated application

9.        The consolidated application relates to decisions to refuse, or remove legal aid in three cases, namely:-

(i)        Case 2014/95 under which Mr Holmes is suing Mr Lingard, HJL Holdings Limited and Angel Fish Limited.  This case has a number of references in the Court file but I will refer to it as the Lingard action;

(ii)       Case 2013/194 in which Mayhew Limited and Mr Holmes sues Bois Bois and Advocate Young.  I shall refer to this as the Bois Bois action;

(iii)      Case 2013/52 under which Home Farm Developments Limited, Strata Developments Limited and Mr Holmes sues Mr Le Sueur.  I shall refer to this as the Le Sueur action. 

10.      In the consolidated application the arguments and themes in relation to all three of the cases set out above are similar although there are some differences. 

11.      With regards to the Lingard action, Mr Holmes challenges certain decisions of the Acting Bâtonnier and certain anticipated decisions; he also alleges that there has been a breach of his right to legal advice privilege. 

12.      With regard to the Bois Bois action, Mr Holmes again seeks to challenge decisions of the Acting Bâtonnier both actual and prospective. 

13.      In connection with the Le Sueur action, similarly a number of decisions of the Acting Bâtonnier, or of the Bâtonnier substitute, are challenged. 

14.      In addition to challenges to the specific decisions taken by the Acting or substitute Bâtonnier Mr Holmes also challenges the Legal Aid Guidelines on human rights grounds and in effect the powers of the respondents to legislate for and administer legal aid. 

15.      During the course of the hearing before me the challenges to the decisions of the Acting Bâtonnier or the Bâtonnier substitute were described as the "personal claims" and those to the guidelines, the general power to provide for legal aid and administer it, were described as the "systemic claims".  In argument the personal claims were largely addressed by the Bâtonnier and the Law Society and the systemic claims by Her Majesty's Attorney General. 

16.      In addition to objections being taken to the substantive merits of any application for judicial review, objection was also taken on the grounds of delay on the part of Mr Holmes and, insofar as the systemic claims were concerned, that of sufficient standing.  As these are bars to proceeding irrespective of the merits I shall address them first. 

Mr Holmes's approach

17.      Mr Holmes filed a detailed skeleton argument but, at the hearing, elected not to make submissions on his application but rather to deal with any points raised by the other parties and the amicus curiae by way of reply.  Given that Mr Holmes was a litigant in person this appeared to the Court to be a practical way of proceeding. 

Orders relating to the cases

18.      In the consolidated application Mr Holmes has made a number of requests for the Court to make orders with regard to the Lingard action, the Bois Bois action and the Le Sueur action.  Any orders made by this Court would affect the rights of individuals, namely those litigating parties, who were not before this Court and in any event this Court is not seized of any of those three actions. 

19.      Accordingly the Court indicated that it was not in a position to make any of those supplemental orders sought by Mr Holmes which would need to be dealt with, if at all, within the context of the individual cases in question. 

Delay

20.      The question of delay falls to be considered in two ways.  Firstly the delay in bringing the application for judicial review and secondly the delay in making an application for relief under the European Convention of Human Rights. 

21.      Rule 16/3 of the Royal Court Rules 2004 ("RCR")  as amended provides as follows:-

"(1)  Subject to paragraphs (2) and (3), an application for leave to apply for judicial review must be made promptly and in any event not later than three months from the date when grounds for the application first arose. 

(2) ...

(3)  An application may be made after the end of the period of three months if the Bailiff is satisfied: 

(a) that there is good reason for the application not having been made within that period; and

(b) that if the relief sought were granted, on an application made at this stage, it would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration

(4)  The court hearing the substantive application may reconsider whether there was good reason for extending the period of three months and may refuse any relief as it considers that granting such relief would cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration. 

(5) If the relief sought is in order in respect of any judgment, order or other proceeding, the date when grounds for application first arose should be taken as the date of that judgment, order or proceeding." 

22.      The Human Rights (Jersey) Law 2000 ("the HRL") states, at Article 8(3), as follows:-

"(3) A person wishing to bring proceedings under paragraph (1)(a) must do so before the end of: 

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court considers equitable having regard to all the circumstances,

unless rules of court made by the Royal Court impose a stricter time limit in relation to the procedure in question." 

23.      Reading the proceeding paragraphs together it is clear that Rule 16/3 provides a stricter time limit in relation to the procedure in question if the application is brought after the 3 month period and it is that stricter time limit to which I must have regard.

24.      With regard to the Lingard action Mr Holmes wishes to challenge decisions made by the Acting Bâtonnier on 24^th December, 2014, and 6^th October, 2014.  His initial application for judicial review was dated 20^th December, 2016, and accordingly was made at least two years after the decisions were made which he challenges.  In addition Mr Holmes alleges that legal advice privilege has been violated by the legal aid office.  Whether or not such a matter could underpin an application for judicial review it would appear that such violation, if it did indeed take place, predated 15^th May, 2015, and again this places the application significantly outside of the three month period provided by Rule 16/3(1) of the Royal Court Rules.  

25.      With regard to the Bois Bois action the decisions which Mr Holmes seeks to challenge were made on 13^th July, 2016, and 23^rd August, 2016.  These too were outside of the three month period for an application which was made by Mr Holmes on 24^th December, 2016. 

26.      Lastly, with regard to the Le Sueur action, Mr Holmes is seeking to challenge decisions made on 6^th May, 2016, and on 14^th December, 2015, and 9^th February, 2015.  These too are outside of the three month period.  Mr Holmes made his application in the Le Sueur action on 29^th December, 2016. 

27.      I refer above to actual decisions which Mr Holmes seeks to challenge.  He is also apparently seeking a review of decisions which he anticipates will be made applying guidelines which he impugns in the systemic claim.  In my view, judicial review in a matter such as this can only lie against actual decisions or actions and so I do not in this application consider further any potential challenges.  Of course, should a decision be made in the future that would be open to challenge on such basis as may then exist. 

28.      Mr Holmes, in his skeleton argument, indicates that he is "not aware of any delay".  Indeed in his skeleton argument he quotes Article 8(3) of the HRL (cited above) but leaves out the final clause dealing with the limitation placed upon the more general statement in connection with rules of court. 

29.      Clearly all of the applications made by Mr Holmes, when viewed against the dates of the decisions against which he is complaining, are out of time.  How then does he explain and justify this apparent delay?  At paragraph 9 of his affidavit of 11^th May, 2017, Mr Holmes states:-

"Prior to July 2016 it was my belief and understanding that I was powerless to do anything about the arbitrary decision and its consequential prejudice expressed in the secondary issue."

30.      By the "secondary issue" Mr Holmes refers to the determination of his applications for legal aid in the various actions before the Court.  In other words he appears to claim that he did not think that he had any ability to make an application for judicial review to challenge those decisions.  There was no doubt, of course, that he was aware that his applications for legal aid had been refused. 

31.      After 20^th July, 2016; Mr Holmes' affidavit reflects the fact that he was in communication with the legal aid office and specifically with the Acting Bâtonnier.  It is not, for the purposes of considering the issue of delay, necessary to go into the detail of that communication.  Suffice to say, that at paragraph 11(16) of Mr Holmes' affidavit he says:-

"At 1649hrs on 23^rd August 2016 I replied to the Acting Bâtonnier's preceding email to confirm that, in view of the final position adopted by the LAO, my only option was to bring a judicial review...  I did not receive a reply to this email." 

32.      Thereafter Mr Holmes' affidavit indicates that he gave further consideration as to whether to continue on the path of bringing a judicial review against the legal aid office and says that "there was a balancing exercise to be had".  He referred to an application that he made at the end of August 2016 to stay one of the cases in which it was involved so that he could apply for leave for judicial review.  At the hearing which had been fixed for 9^th September, 2016, before the Master, Mr Holmes indicates at paragraph 14 of his affidavit that "at the hearing before the learned Master I did not advance argument in support of my stay application and the Master, quite rightly, refused it.  It was apparent that my stay application was premature and was conceived at the time, in that I had not filed any judicial review application with the Royal Court and my grounds for doing so were not established inter alia."

33.      Mr Holmes then indicates that he conducted some research as to grounds for judicial review of the "systemic flaw" which he says led him to establish that the Bâtonnier and all the legal aid office were amenable to judicial review and that he stumbled across another ground for judicial review, namely that the provision of a legal aid system was a state obligation.  This, so Mr Holmes indicated, "raised the fundamental issue of whether the Bâtonnier and/or the LAO actually possess the requisite powers, delegated or otherwise, to determine my (or any persons) common law in Article 6 ECHR rights of access to the court...".  He then, at paragraph 18 of his affidavit, confirms that having established the grounds for judicial review he then prepared the applications (now consolidated) that he lodged in late December 2016. 

34.      Therefore, in summary, Mr Holmes' argument today is that he did not know that judicial review was available to him in part, with regard to the specific decisions on the personal claims until sometime before August of 2016, and on the systemic claims, before October 2016. 

35.      In support of his argument about delay Mr Holmes advances two cases in the area of public procurement.  I propose to refer to the most recent of them which also analyses the earlier.  In Sita UK Limited-v-Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 the Court of Appeal considered what the state of knowledge of a claimant needs to be who wishes to object to a procurement decision for the three months to begin to run and within which he must bring such an application.  At paragraph 24 of its judgment the Court of Appeal said:-

"In the domestic context this matter was considered by the House of Lords in Howard and others -v- Fawcetts [2006] 1 WLR 68 which involved a claim for damages in a latent damage case where Section 14A of the Limitation Act 1980 applied.  Lord Nicholls, in a characteristically succinct formulation, described the degree of knowledge required to being a claim in the following way (para 9);

""Knowledge" does not mean knowing for certain and beyond possibility of contradiction.  It means knowing with sufficient confidence to justify embarking on the preliminaries is to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence; the suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice."

He added that "it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim".  Lord Nicholls added that one should ask in broad terms whether the complainant had knowledge of the facts in which his complaint is based."

36.      In fact in the Sita judgment the Court of Appeal approved the formulation by Mann J in the court below who had adopted a test in the following way:-

"The standard ought to be knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement." 

37.      On my understanding of the facts, this case does not assist Mr Holmes.  It is not a question of having knowledge of the law in particular circumstances but rather having knowledge of the facts which could give rise to a claim in the law.  It would, it seems to me, be all too easy for a potential claimant, specifically a litigant in person, to justify almost any extreme delay in bringing an application for judicial review on the basis that he was ignorant of the law involved and this would hardly meet the justice in those cases nor indeed the requirement that judicial review applications be made promptly.

38.      The decisions Mr Holmes seeks to challenge were communicated to him on or very close to the time that they were made.  In terms of the factual basis of any application, that was available to and known by Mr Holmes on or around those dates. 

39.      As I have indicated above, Mr Holmes was aware of the availability of judicial review as a potential remedy in such a case from at least July of 2016.  Mr Holmes' argument on the matter of delay is that he did not know that he might have a legal remedy in respect of some of his arguments until what is referred to by the First and Second Respondents in argument as his "damascene epiphany" in October 2016 concerning the systemic claims. 

40.      Mr Holmes suggests that he had been informed by the Acting Bâtonnier by email of 23^rd August, 2016, that the legal aid function and any challenge against validity and fairness were immune from judicial review.  At paragraph 15 of his affidavit he refers to the Acting Bâtonnier's statement in an email of of 23^rd August, 2017, that "the legal aid scheme "is not subject to statute, it is a voluntary scheme.."". 

41.      The communication from the legal aid office, namely the email from the Acting Bâtonnier of 23^rd August, 2016, does not appear to support what Mr Holmes contends.  It is clear that that email is dealing not with matters of judicial review but the status of the legal aid office under the Freedom of Information (Jersey) Law 2011.  In fact Mr Holmes' response shortly thereafter, on the same day, indicates that he will be applying for judicial review of the legal aid guidelines. 

42.      It does not appear to me to be capable of argument that Mr Holmes was not apprised of all of the relevant facts by, at the very latest, August 2016 and in respect of most if not all of the specific decisions some considerable time before that.  At the very latest he is a month too late to bring such an application but, in terms of the dates of the decisions set out above, is in my view to a great extent very considerably more out of time than that. 

43.      As I have observed already, Rule 16(3) of the RCR provides that an application may be made after the end of the three month period if the Bailiff is satisfied that the relief sough were granted, on an application made at that stage, it would not be likely to cause substantial hardship to or substantially prejudice the rights of any person or be detrimental to good administration. 

44.      Mr Holmes neither in his application nor affidavit addresses the effect of his late application on the interests of any other third parties.  In the House of Lords case of Regina-v-Dairy Tribunal Ex P Caswell [1992] AC 738, in relation to wording similar in its form to Rule 16(3)(b) Lord Gough said:-

"Lord Diplock pointed out in O'Reilly -v- Mackman [1983] 2 AC 237, 280 to 281: 

"The public interest in good administration requires the public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. 

I do not consider it will be wise to attempt to formulate any precise definition or description of what constitute detriment to good administration.  This is because applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another.  But it is of importance to observe that Section 31(6) recognises that there is an interest in good administration independently of hardship, or prejudice to the right of third parties, and that the harm suffered by the applicant by reason of the decision which has been impugned is a matter which can be taken into account by the court when deciding whether or not to exercise its discretion under Section 31(6) to refuse the relief sought by the applicant.  In asking the question whether the grant of such relief would be detrimental to good administration, the Court is at that stage looking at the interest in good administration independently of matters such as these.  In the present context, that interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision.  Matters of particular importance, apart from the length of time itself, will be the extent of the effect of the relevant decision, and the impact which would be felt if it were reopened."

45.      It appears to be clear that Mr Holmes' challenges to the specific decisions of the Royal Court made with regard to the cases in which he was involved can only be intended to secure the reversal of those decisions and to secure legal aid.  That would mean, as clearly Mr Holmes would wish, that many of the decisions made in those cases would be re-opened with all of the complexity and, importantly, uncertainty, expense and prejudice to the other parties in those cases.  It seems to me that it was incumbent upon Mr Holmes in his application to address these important issues.  I am entitled, therefore, in the absence of any such argument, to form the view that, prima facie, given the age of most of the decisions challenged, there would be a real prejudice to other parties to the Lingard action, the Bois Bois action and the Le Sueur action.  I am not satisfied that such an application would not cause prejudice or hardship to the rights of other persons. 

46.      In the circumstances I am not satisfied that I should exercise my discretion in favour of permitting this application and I accordingly disallow it on the grounds of delay. 

47.      Having determined that the application should fail on the issue of delay it is strictly unnecessary for me to deal with the other arguments.  I do propose to touch on the question of standing as this is another bar at the leave stage.  There are to my mind, however, also material difficulties with Mr Holmes's application both as to the merits and, in certain cases, his failure to exhaust alternative remedies.  These points have been dealt with before me at some length by counsel for the First and Second Respondents and by the Attorney General. 

Standing

48.      Standing is not in issue with regard to the personal claims as it is accepted that, other things being equal, Mr Holmes would have standing to make the personal claims.  I agree.  The position with regard to the systemic claim is not so uncontroversial, however, and a consideration of this aspect is linked in part to the merits of the systemic claim as put by Mr Holmes. 

Standing and the Systemic Claim

49.      It is clear that Mr Holmes's systemic claim is centred almost entirely upon the European Convention of Human Rights ("ECHR"). 

50.      I do not think it necessary, in talking about the legal aid system to set out the origins of legal aid in Jersey.  Suffice to say that there have been guidelines issued by the Law Society from time to time as to the nature of the obligation to provide legal aid. 

51.      The current guidelines occur within a statutory framework in that Article 3(2) of the Advocates and Solicitors (Jersey) Law 1997 requires that no person should practice law as an advocate or solicitor unless he or she is an ordinary member of the Law Society (with exceptions for the Law Officers and those employed within their department).  The Law Society is itself a statutory body under the Law Society of Jersey Law 2005 and, pursuant to Article 16 of that Law, issues bye-laws the current iteration of being the Law Society of Jersey Bye-Laws 2007. 

52.      Bye-law 38 mandates compliance with the Law Society of Jersey's Code of Conduct as an obligation on all ordinary members of the Law Society and Section 3 of the Code of Conduct requires compliance with the legal aid guidelines.  Accordingly any failure by an advocate or solicitor to comply with the legal aid guidelines is of itself a breach of good conduct. 

53.      There is, accordingly, a structure for legal aid that arises out of a statutory regime and has the effectiveness of statutory authority. 

54.      The decisions which Mr Holmes challenges were taken in the context of the legal aid guidelines and, for example, paragraph 1.1.2 of the current guidelines provide:-

"An applicant will be considered to be in need of representation where their financial circumstances, taking into account the complexity of the litigation, would lead to hardship were they required to fully fund that legal representation and where they required to fully fund that legal representation and where their case has sufficient merit in the opinion of the Bâtonnier.  What would constitute sufficient merit depends upon the type of case involved and the relevant tests are set out in these guidelines."

55.      The systemic claim is set out at Section 8 of the consolidated application. 

56.      Paragraph 1 of Section 8 addresses the question as to whether the function and powers of the legal aid office, which administers legal aid on a daily basis and/or the Bâtonnier are "substantive ultra vires for want of jurisdiction?"  The points underpinning that question are stated as follows:-

"(1) That weight should be given to whether Article 6 of the European Convention of Human Rights (ECHR) confers a basic obligation on member states to legislate the extent and limit of a legal aid scheme for facilitating rights of access to the court in criminal and civil matters, inter alia.  UK and ECHR jurisprudence on Articles 6(3) and 6(1) appear to reflect as such. 

(2) ...

(3) In relation to the guidelines, the LAO has conceded "that compliance with Article 6 ECHR is an obligation which falls upon the state".  Accordingly there appears to be an authority vacuum.

(4) Absent overriding statute and/or requisite powers delegated from the state, the function and powers of the LAO and/or Bâtonnier appear substantive ultra vires for want of jurisdiction." 

57.      It is not clear from the consolidated application why the details of a legal aid scheme must be provided for by primary statute or even by secondary legislation.  To the extent that ensuring an Article 6 ECHR compliant trial, and therefore the provision of legal aid in some circumstances, is ultimately an obligation of the state, such obligation does not require that provision to be made in any particular way.  There is, as far as I can see, no authority advanced by Mr Holmes that a legal aid scheme cannot be provided within a legislative framework such as the guidelines issued by the Law Society of Jersey in the present circumstances. 

58.      In support of that argument one has only to look at the well-known case of Van Del Mussele-v-Belgium [1984] 6 EHRR 163 (which dealt with Belgian legislation imposing a duty to organise legal assistance on the local councils of the ordre des avocats) in which there was no suggestion that the state needed directly to organise legal aid or provide it in a particular way. 

59.      Given the framework that I have referred to above, it does not seem to me to be arguable that the guidelines are themselves ultra vires. 

60.      In Airey-v-Ireland [1979/80] 2 EHRR 305 at 26 the European Court of Human Rights said this:-

"...Whilst Article 6(1) guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations", it leaves to the state a free choice of the means to be used towards this end."

61.      In my view to succeed in any argument relating to the manner in which legal aid is provided, Mr Holmes must also, at the same time, point to that manner as actually prejudicing his right to a fair trial within the meaning of Article 6 ECHR. 

62.      Paragraph 2 of Section 8 poses the question of whether the legal aid guidelines are substantively and/or procedurally ultra vires as incompatible with Articles 4 and 6 ECHR?  In his skeleton argument the Attorney General sums up paragraphs 2 (a - d) of those grounds by quoting from paragraph 2(c) which summarises the nature of that argument overall:-

"In summing up at paragraph 56 of R (Gudanaviciene) -v- UK Director for Legal Aid Case Work and Lord Chancellor, Richards LJ held "the answer to the question requires consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the guidance.  These factors must be carefully weighed.  Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress demands and complexity of the proceedings, the more likely it is that Article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test)."

63.      This appears to me largely to accord with paragraph 1.1.2 of the guidelines. 

64.      Furthermore in R (Howard League for Penal Reform)-v-The Lord Chancellor [2017] 4 WLR 92, in connection with the case concerning judicial review challenging the lawfulness of regulations made under an English statute, the Court of Appeal said, at paragraph 117:-

"Two decisions show that in a case like this the correct target of a challenge based on rights under the ECHR are individual decisions alleged to have been made in breach of those rights or the requirements of procedural fairness.  The first is R (Roberts) -v- Parole Board [2005] UKHL 45 one of the cases Lord Bingham of Cornhill used to illustrate the seventh principle of the rule of law to which we referred at paragraph 3 above.  In the context of determining whether the duty of procedural fairness required by Article 5.4 was infringed by the non-disclosure of material to a claimant or his legal representatives, Lord Bingham at paragraph 19 stated that the assessment of incompatibility "is almost necessarily made in retrospect where there is evidence of what actually happened".  Lord Woolf CJ at paragraph 76 stated that "there can be an infinite variety of circumstances as to the degree of information that is withheld completely or partially without any significant unfairness being caused ....  The second decision is R (Aguilar Quila) -v- Secretary of State for the Home Department [2011] UKSC 45   In it, Lord Wilson JSC stated at paragraph 59 that decisions founded on human rights "are essentially individual".... Lord Wilson JSC did, however, recognise that it is possible that in extreme cases it can be shown that a rule or system is incapable of application that is consistent with the ECHR in any individual case and is therefore invalid.  In the light of this, absent consideration of an individual claimant's personal circumstances in a CSC, the claimant's primary argument in this case collapses into their argument that the system is inherently or systemically unfair."

65.      It seems to me, therefore, that to succeed on these grounds Mr Holmes must demonstrate that not only is he a victim in that his Article 6 rights have been denied because he has been denied legal aid but also that his status as such is caused by the fact that the legal aid system is "inherently or systemically unfair". 

66.      It does not seem to me that Mr Holmes's consolidated application has put forward an arguable case that the legal aid system is inherently or systematically unfair within the sense of R (Howard League for Penal Reform) -v- Lord Chancellor.

67.      In paragraph 2(e)(i) of Section 8 Mr Holmes asserts that when "representing a client of little or no means" an advocate is obligated to do so gratis and cover all out of pocket expenses.  This procedure is inherently unfair so he argues and appears to violate Article 4 ECHR.  It does not seem to me that this is an argument that Mr Holmes can make and if it can be made at all it is a matter for an advocate who would be the victim of it.  Mr Holmes cannot it seems to me link that ground to any argument that he himself may be a victim of systemic unfairness within the Jersey legal aid system. 

68.      In paragraph 2(e)(ii) of Section 8 Mr Holmes says that there is no provision for expert witnesses fees, thus potentially "stymieing an advocate's advice and/or a client's Article 6(1) right to a fair trial."  I do not see anything in Mr Holmes' affidavit which suggest that he has suffered as a result of a lack of expert witnesses and therefore is a victim of this alleged want in the legal aid system.  In fact, as the Court understands it, provisions can be made for expert witnesses and this, in appropriate circumstances, is funded by the state through the Judicial Greffier. 

69.      Finally, in paragraph 2(e)(iii) of Section 8 Mr Holmes argues as follows:-

"Where an advocate is obligated to act and advise a client gratis subject only to a legal aid opinion on the merits, and to provide such legal opinion on the basis of being obligated by LAO to continue to act and advise gratis only in the event the said opinion is placed into category 4 or above, the advocate, in view of the foregoing inherent interest to the outcome of the said opinion, is prima facie conflicted, potentially or otherwise, from exercising the strict objectivity that is required to give it, the said opinion.  This procedure is unfair to both advocate and client, incompatible with the "reasonable merits test" as defined under Article 6(1) test, and appears to breach the natural justice principle (i.e. that no man can be a judge in his own cause and/or perceived danger of bias)."  

70.      In R (Howard League for Penal Reform) quoted above the Court said, at paragraph 48:-

"We have referred to the high threshold required where it is claimed that a rule, an administrative system, or a policy is unlawful because it gives rise to an unacceptable risk of unfairness." 

And, at paragraph 50:

"The principles had earlier been summarised by Lord Dyson MR in the Detention Action Case [2015] 1 WLR 5341, para 27:

"(i) In considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) A successful challenge to a system on grounds of unfairness must show more than the possibility of abhorrent decisions and unfairness in individual cases; (iii) A system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) The threshold of showing unfairness is a high one; (v) The core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); (vi) Whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts.""

71.      It seems to me that this ground ignores the fact that an advocate is not "a judge in his own cause" but is instead carrying out a professional duty to advise on the merits of a case.  One could think of a number of circumstances in which in theory a professional adviser might be tempted, looking solely to their own interests, to give a particular slant to professional advice either to avoid expenditure of their own or, more probably, to encourage a lay person to go down a more expensive route to the professional advisers benefit.  This complaint assumes and is predicated upon a view that a legal adviser, giving a merits advice, will slant that advice to their own perceived benefit as opposed to discharging their duties in a professional manner.  It is, of course, also the case that an appeal can be made to the Bâtonnier, a qualified lawyer, who can review any advice given on the merits. 

72.      The system in Jersey by which a lawyer provides an opinion on the merits is long established.  It may well be the case that it is capable of going wrong in some circumstances and on some rare occasions.  That does not mean, however, that it is systemically flawed.  Furthermore Mr Holmes would need to be able to demonstrate his victim status in connection with that part of his claim. 

73.      The last of the systemic issues is set out in paragraph 2(e)(iv) of Section 8 which deals with the provision of legal aid for companies.  It is it seems to me impossible for Mr Holmes to carry this point any further forward as no company is an applicant in the consolidated application. 

74.      I have given some consideration to the systemic claim because Mr Holmes indicates that he only became aware of it in October 2016 (that is within the three month period).  Although I have already indicated that in my view the test for knowledge is that of the facts that can give rise to a claim and not the legal basis of such a claim, should I be wrong about that it seemed to me to be appropriate to consider whether the systemic claim passes the threshold test. 

75.      In my view Mr Holmes cannot pass the threshold for the systemic claim.  He does not demonstrate in his affidavits or otherwise that he is a victim of a systemic failure.  He may or may not have an arguable case relating to the individual decisions taken within the system but he does not come close in my view to reaching the point where he can justify a systemic attack.  He is in my opinion well below the threshold contained in R (Howard League for Penal Reform) cited above.  He does not in my view have standing. 

76.      It is unnecessary to consider the personal claims relating to the detailed decisions which in my view are, on any analysis, the subject of unwarranted and unjustified delay and where third parties would be prejudiced were Mr Holmes allowed to make an application notwithstanding that delay. 

77.      Accordingly I refuse Mr Holmes' application for leave. 

78.      I wish to thank counsel for the parties and the amicus curiae for the quality and thoroughness of their submissions both written and oral. 

Authorities

Sharma -v- Brown-Antoine [2006] UK PC 57. 

Yates -v- Minister for Planning and Environment [2006] JRC 167. 

R-v-Inland Revenue Commissioners Ex P National Federation of Self-Employed and Small Businesses Limited [1982] AC 617. 

Royal Court Rules 2004. 

The Human Rights (Jersey) Law 2000. 

Sita UK Limited -v- Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156. 

Freedom of Information (Jersey) Law 2011. 

Regina -v- Dairy Tribunal Ex P Caswell [1992] AC 738. 

Advocates and Solicitors (Jersey) Law 1997.

Advocates and Solicitors (Jersey) Law 1997. 

Law Society of Jersey Bye-Laws 2007. 

Van Del Mussele -v- Belgium [1984] 6 EHRR 163. 

Airey -v- Ireland [1979/80] 2 EHRR 305. 

R (Howard League for Penal Reform) -v- The Lord Chancellor [2017] 4 WLR 92