High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"Where can I get help to appeal?

Parent groups or voluntary organisations which help people with special needs will usually be able to give you any help you may need. You may also be able to get legal aid so you can have a meeting with a solicitor to ask for advice about how to prepare your case. In this case you would need to apply for 'Green Form' Legal Aid. Any solicitor can tell you if you can get this, and your local Citizens Advice Bureau can give you the names of solicitors who run the 'Green Form' scheme and who may be experienced in educational matters. You will find the address and phone number of the Citizens Advice Bureau and those of local solicitors in the phone book and Yellow Pages. The Tribunal's staff (the Secretariat) will be happy to explain procedures to you, or to clarify how the appeal form should be filled in."

At page 8 of the booklet the applicant was advised that neither he nor the Board should need a legal representative as the hearing would be straightforward and the Tribunal would not use legal jargon. He was further advised that if he did bring a legal representative legal aid would not be available.

(a) There was a background of allegation and counter allegation between himself and the school and Board documented in voluminous documentation;

(b) The applicant contends that the Board have acted in bad faith;

(c) The hearing will rely heavily on expert evidence and opinion about ABA;

(d) The expert evidence will depend upon the complex factual history;

(e) The area is regulated by a complex statutory code;

(f) There are many established precedents in the case law.

(g) The prospect of the appeal is overwhelming for the applicant who is not a highly educated man and in any event is likely to be emotionally involved.

"10. Before requesting an authorisation to fund legal advice, assistance and representation for an individual case under section l2(8) (b) for proceedings other than inquests. I consider that the Commission must first be satisfied in each case that:

(a) the proceedings are:

(i) not of the description mentioned in Part 1 of Schedule I to the 1981 Order;

(ii) not in respect of which criminal legal aid may be given under Part III of the 1981 Order;

(iii) not in respect of which assistance by way of representation may be approved under article 5 of the 1981 Order; and

(iv) not otherwise covered in a direction under Article 12(8)(a) of the Access to Justice (NI) Order.

(b) the client is financially eligible for civil legal aid, unless otherwise provided for in a Direction.

(c) the following criteria should be satisfied (although certain criteria may not be relevant in certain types of case);

(i) Alternative Funding The applicant has produced evidence to demonstrate clearly that no alternative means of funding is available. The application may be refused if alternative funding is available to the client (through insurance or otherwise) or if there are other persons or bodies, including those who might benefit from the proceedings, who can reasonably be expected to bring or fund the case.

(ii) Alternatives to Litigation An application may be refused if there are complaint systems, ombudsman schemes or forms of alternative dispute resolution which should be tried before litigation is pursued.

(iii) Other Levels of Service An application may be refused if it appears premature or if it appears more appropriate for the client to be assisted under the advice and assistance or assistance by way of representation scheme.

(iv) The Need for Representation An application may be refused if it appears unreasonable to fund representation, for example in the light of the existence of other proceedings or the interests of other parties in the proceedings to which the application relates.

(v) Prospects of Success Funding will be refused if the prospects of success are

- unclear

- borderline and the case does not appear to have a significant wider public interest or to be of overwhelming importance to the client or

- poor

(vi) Cost Benefit Public Interest Cases If the claim has a significant wider public interest, funding may be refused unless the likely benefits of the proceedings to the applicant and others justify the likely costs, having regard to the prospects of success and all other circumstances.

11. Where the Commission is so satisfied I would be prepared to consider authorising funding under section 12(8)(b) where any of the following apply:

(a) there is a significant wider public interest in the resolution of the case and funded representation will contribute to it. In this context 'Wider Public Interest' means the potential of the proceedings to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question).

(b) the case is of overwhelming importance to the client. In this context 'Overwhelming importance to the client' means a case which has exceptional importance to the client, beyond the monetary value (if any) of the claim, because the case concerns the life, liberty or physical safety of the client or his or her family, or a roof over their heads.

(c) there is convincing evidence that there are other exceptional circumstances such that, without public funding for representation, it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings."

"23. The Commission will apply the criteria set out in the Lord Chancellor's Guidance. In so doing the Commission will interpret the criteria in the following context.

Significant Wider Public Interest

24. Public interest carries with it a sense that large numbers people must be affected. As a general guideline even where the benefits to others are substantial, it would be unusual to regard case as having a significant wider public interest if fewer than 100 people would benefit from its outcome, although there is no limit or minimum on the number of people who must benefit before a significant wider public interest can be established. This will vary greatly according to the nature of the benefits. If the benefits are general quality of life considerations, such as noise nuisance for example, the number of persons affected must be very substantial before a significant wider public interest can be established

25. It may be particularly difficult to quantify the public interest in a case which seeks to establish a new legal precedent or issue of law. In such cases the people who will benefit will be future clients who are unlikely to be easily identifiable at the time the public interest case is pursued. In such cases it may be necessary to estimate how many such cases will come forward each year and to estimate for how long the legal precedent is likely to continue to have an effect.

26. In deciding whether a case which raises a new point of law has a significant wider public interest, it is necessary to consider how likely it is that the court will change or clarify the law in deciding the case. The mere fact that an area of law is unclear, so that it is possible that the court may clarify the law, is not enough to establish a significant wider public interest. It is more likely that there will be a significant wider public interest if a case directly raises a specific point of law which the court will have to resolve one way or another.

27. Note that in deciding whether a case has a significant wider public interest it is only necessary to show that the case can produce real benefits for individuals other than the client. The following examples, some of which are drawn from the current legal aid scheme, illustrate this point. In sense cases the benefits may be directly quantifiable, while in others the benefits are indirect or intangible.

(a) protection of life or other basic human rights - for example a challenge to a Government immigration policy concerning a class of asylum seekers, who allege that they face persecution if not allowed to remain in the country;

(b) direct financial benefit - for example where a challenge to welfare benefit entitlements leads to the Government thereafter making higher payments to a whole class of claimant;

(c) potential financial benefit - this is usually the situation for most test cases or group actions, such as those, which establish liability of a manufacturer for harm, caused by a dangerous product. It is also true of test cases to establish an important legal issue. Success in such litigation will not usually guarantee compensation for those outside the litigation, who may still need to bring their own claims and prove their own issues on liability, causation and quantum;

(d) causes concerning intangible benefits such as health, safety and qualify of life - for example judicial review cases concerning education policy or healthcare provision.

28. It is sometimes said that a case has a wider public interest if it raises 'an important issue of law'. This of itself does not form part of the definition of 'wider public interest'. However one of the ways in which a case might produce real benefits for individuals other than the client (and so come within the definition) is by establishing a new legal precedent. which allows claims of a similar type to be pursued in the future. If so, it would count as having a 'wider public interest' for our purposes. It is not appropriate at this stage to consider competing public interests or any disbenefit which the case may bring to other persons.

Overwhelming importance to the Client

29. Overwhelming importance is an exceptional consideration: it will only apply in a small minority of cases. Although the individual circumstances of the client will be taken into account. the test of whether a case has overwhelming importance must be approached objectively i.e. whether a reasonable client would regard the case as of overwhelming importance. The approach should be confined to those cases which have the most profound impact on a client, examples being proceedings arising from infant death or a death in custody (see Direction issued under Article 12(8)(a)). Such a case may well include a money remedy but from a client's point of view, the case would be about establishing liability for the death.

30. A case should not be regarded as of overwhelming importance to the client merely because of the subject matter of the wrong originally complained off. Illustrations under the current legal aid scheme of the four types of cases which come within the definition of overwhelming importance to the client concern.

(a) life, certain asylum cases, infant death or death in custody come within the definition;

(b) liberty, detained clients claiming habeas corpus come within the definition;

(c) physical safety;

(d) or a roof over one's head, a possession action in which the client is at real risk of losing their home would come within the definition (whether or not the client has a right to be rehoused by the appropriate housing authority), as would a judicial review seeking to order the appropriate authority to house a homeless person. However, the great majority of housing disrepair claims (which generally concern the home rather than the issue of whether the client has a home at all) do not. The test is whether the home is itself in issue in the proceedings. Proceedings the outcome of which would leave the client in financial difficulties, so that the home may then be at risk, do not constitute overwhelming importance to the client for the purposes of this guidance.

Prospects of Success

31. The Commission will interpret the concept of prospects of success in a flexible manner consistent with the variety of different circumstances which pertain in individual cases. This concept will not be applied to funding for inquests. It can be defined as, 'the likelihood of the client obtaining a successful outcome.'

32. What is meant by a successful outcome depends on the nature of the case. It considers the substance of the case from the vantage point of a reasonable applicant and seeks to establish what the applicant is realistically seeking to achieve from the proceedings.

Categories of Prospects of Success

33. When the prospects of success of a case is being evaluated each case must be put into one of the following six categories:

(a) Very Good - 80% chance or more of obtaining a successful outcome;

(b) Good - 60-80%;

(c) Moderate - 50-60%;

(d) Borderline - this applies where the prospects of success are not poor, but because there are difficult disputes of fact, law, or expert evidence, it is not possible to say the prospects of success are better than 50%:

(e) Poor - prospects of success are clearly less than 50% so that the claim is likely to fail;

(f) Unclear - the case cannot be put into any of the above categories because further investigation is needed."

"1. Alternative Funding: The applicant, ED has not produced evidence to demonstrate clearly that no alternative source of funding is available. It is considered that under Article 15 of the Commissioner for Children and Young People (Northern Ireland) Order 2003, funding may be available to the applicant from the Commissioner for Children and Young People.

2. Other levels of service: It appears more appropriate for the applicant to be assisted under the Green Form Advice and Assistance Scheme. Such funding is available to obtain a report from an educational expert.

3. Prospects of success: The prospects of success are unclear. In the absence of expert evidence, the applicant's assertion that the prospects of success are 75% is not accepted.

4. Significant wider public interest: There is no evidence of a significant wider public interest in the case being funded, in that the appeal to the Special Education Needs Tribunal has the potential to produce real benefits for individuals other than the applicant and his son. It is noted that, in the second affidavit which the applicant filed in the judicial review proceedings sworn on 9 January 2004, he states (at para. 8) that he believes his case is not a test case.

5. Overwhelming importance to the client: None of the elements involved under this criterion (as defined in para. 11(b) of the Lord Chancellor's Guidance together with paras. 29 and 30 of the Commission's Guidance) is present in the circumstances of the applicant's case.

6. The need for representation/unfairness in the proceedings: There is no convincing evidence such that, without public finding for representation, it would be practically impossible for the applicant to bring the proceedings, or that the lack of public funding would lead to obvious unfairness in the proceedings. It is noted that the procedures of the Special Educational Needs Tribunal are informal in nature, legal jargon is not used and an adversarial approach is discouraged. It is also noted that, in the affidavit filed by the Belfast Education and Library Board in the judicial review proceedings on  8 January 2004. it states (at para. 15) that if the applicant is not legally-represented for the appeal before the Tribunal they also will not he legally-represented."

"7. However, in my view, this application does not satisfy the following 'primary' criteria for exceptional grant funding in non-inquest cases which are listed at paragraph 10(c) of the Lord Chancellor's Guidance:

(i) Alternative Funding — the papers lodged with this application, and also those filed on behalf of ED in the judicial review case, assert that no funding is available to him for the SENT appeal hearing from either the Children's Law Centre nor the Independent Panel for Special Educational Advice. However, it seems to me that such funding may be available from the Commissioner for Children and Young People. Under Article 15 of the Commissioner for Children and Young People (Northern Ireland) Order 2003, the Commissioner can grant assistance in relation to legal proceedings involving law or practice concerning the rights or welfare of children or young persons. The test for the grant of such funding appeals similar to that under which, for example, the Equality Commission and Northern Ireland Human Rights Commission fund various types of legal proceedings from time to time. That is, the Commissioner may grant assistance if he is satisfied the case raises a question of principle, it would be unreasonable to expect the child/young person to deal with the case without assistance or there are other special circumstances which make it appropriate for him to provide assistance.

(ii) Other Levels of Service - in any event, from the papers, I consider that this application is premature and that it would be more appropriate for ED to be assisted (at least initially) by way of the Green Form Advice and Assistance Scheme. Such funding should, in my view, be used to obtain a report from a suitably-qualified educational expert. (I note that this is referred to in para. 19 of the LSC submission.)

(iii) Prospects of Success — The LSC submission records, at para. 14. that the applicant's solicitor has assessed the prospect of success at 75%. However, no expert evidence has been submitted. In the absence of same. I do not understand the basis on which this assertion (or indeed any such evaluation) can be made.

8. If the above criteria were satisfied in this case, funding could be considered if one of the 'secondary' criteria set out at paragraph 11 of the Lord Chancellors Guidance were established. These criteria (which are elaborated at paras. 23-30 of the LSC Guidance) are as follows:

(i) Significant wider public interest — bearing in mind the subject-matter of the proceedings in question here, potentially, it might be possible to argue that they would produce real benefits for individuals other than DD. However, in this regard, I note that in the second affidavit which ED has filed in the judicial review proceedings, he states (at para. 8) that he believes his case is not a test case. (At the same time, I appreciate that this factor, if upheld, may militate against his applying successfully for funding from the Commissioner for Children and Young People.)

(ii) Overwhelming importance to the client — this is a very narrow ground on which funding may be authorized. None of the elements involved (life, liberty or physical safety of the client/his family, or a roof over their heads) is present in the circumstances of this case.

(iii) The practical impossibility for the client to bring the proceedings/obvious unfairness in the proceedings — this factor is elaborated at para. 12 of the Lord Chancellor's Guidance. It was the central basis on which the High Court considered the judicial review challenge in the case of Lynch. I will consider it further in paragraphs 9 and 10 below.

9. The Lord Chancellor's Guidance states, at paragraph 11(c), that he would be prepared to consider authorizing funding where 'there is convincing evidence that there are … exceptional circumstances such that, without public funding for representation, it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings.' This test is drawn from the jurisprudence of the ECHR at Strasbourg. A comparison between the central elements involved in Lynch and ED's case is, I think, useful:

(i) Mrs Lynch had brought two defamation cases in the High Court, in which the defendants (a national newspaper and an established current affairs magazine) were represented by solicitors together with senior and junior counsel. Due to their nature, the proceedings were liable to involve (at the election of either party) trial with a jury. Defamation is a complex area of law. Nonetheless. Kerr J (as he then was) stated he was satisfied that 'although [Mrs Lynch would] have difficulty in preparing and presenting her case, [this was] not a practically impossible task.' (It should also be noted that the applicant lodged, but then withdrew, an appeal against this decision.)

(ii) It seems clear from all the materials available in respect of appeal proceedings before the SENT Tribunal that they are designed to operate on an informal basis. The three members of the Tribunal hearing any particular case comprises a legally-qualified chairman and two lay members, who are usually from an educational or social services background. They seek to avoid formality in the conduct of appeals, and discourage an adversarial approach. From the papers filed in the judicial review case, there appears to be some dispute as to how often, in practice, the appellant parent and the relevant Education & Library Board are each legally represented. However, in the context of the present case, having been granted leave to intervene in the judicial review, the Belfast Education & Library Board have stated categorically that, if ED is not to be legally-represented at the appeal. then they will reciprocate. (See para. 15 of the affidavit sworn by Anne Patience, in the BELB). It would appear from para. 13 of the LSC submission that this fact has not come to Mr Ferguson's attention."