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Connelly v. G.A. Group Ltd & Anor [2003] ScotSC 47 (08 October 2003)

A3321/94

ROBERT CONNELLY v G A GROUP LTD and E J STEILL & CO LTD

GLASGOW, September, 2003. The Sheriff, having resumed consideration of the cause continues further consideration of all motions for expenses until

NOTE:

This is a personal injury action in which the pursuer abandoned his action on 19 August 2003. On that date I heard various motions for expenses by both defenders as against the pursuer and as between the defenders themselves. On that date, senior counsel for the second defenders raised an issue as to whether the pursuer was an assisted person in terms of the legal aid legislation. Senior counsel for the pursuer was taken by surprise in relation to this motion and the matter was adjourned to 28 August 2003 for investigation. On that date the various motions for expenses were modified (I need not deal with the questions as between the defenders). Both the first defenders and second defenders now sought expenses against the pursuer. The pursuer did not and could not oppose a motion for expenses but sought amendment of the defenders' motion so as to find the pursuer liable for expenses as an assisted person.

Senior counsel for both defenders also, on 28 August 2003, moved motions at the Bar that, esto the pursuer was an assisted person, the first and second defenders should be entitled to expenses as against the Scottish Legal Aid Board ("the Board") in terms of section 19 of the Legal Aid (Scotland) Act 1986 ("the 1986 Act"). All parties were agreed that it would be desirable for the Board to be in attendance to deal with not only the motion under section 19 of the 1986 Act but also to assist the court in relation to issues arising out of the principal motion by the first and second defenders to find the pursuer liable for expenses. I ordered intimation of the motion to the Board and wrote a short Note.

As a result a hearing took place on 4 September 2003. Mr I G Mitchell, QC and Mr Coll appeared for the pursuer; Mr Jonathan Mitchell, QC appeared for the first defenders, the G A Group Ltd; Mr D I McKay, QC and Mr Laing appeared for the second defenders, E J Stiell & Co Ltd and Mr Haggerty appeared for the Board.

Before I set out the competing submissions before me, as these relate to the pursuer's legal aid certificate I quote the relevant parts from the legal aid certificate which has been lodged in process:-

"SCOTTISH LEGAL AID BOARD

LEGAL AID CERTIFICATE

This is to certify that subject to the provisions of the Legal Aid (Scotland) Act 1986 and any regulations made thereunder, Legal Aid has been made available to the person designed below as the assisted person effective from the date shown hereon and for any urgent or specially urgent work undertaken before that date under regulation 18 of the Civil Legal Aid (Scotland) Regulations 1987, provided that all the necessary conditions imposed by or under that regulation have been complied with. The Legal Aid made available is also subject to any conditions, provisions, limitations, amendments and other terms endorsed thereon (sic) or any certificate of endorsement relating hereto.

Assisted Person

Robert Connelly

....

Court: Sheriff Court

Nature of Proceedings: Damages

In causa

Pursuer the said Robert Connelly...

Defender E & J Steill & Co Ltd... and Others.

...

Disposable Income - £2,293 - Disposable Capital - Nil - Contribution - Nil

Effective date of certificate - 08/07/93 - Issue Date: 15/07/93 - Expiry Date: 15/07/94

It is a condition of issue that this certificate shall ceased to have effect unless proceedings for which it is issued have been commenced within 12 months of the date of issue.

...

Additional opponents for

Robert Connelly...

G A Group Ltd, Woodside Terrace, Glasgow G3 7XH."

Parties helpfully agreed a chronology of events. The relevant parts are as follows. The pursuer's accident occurred on 27 January 1992. The effective date of the legal aid certificate is stated to be 8 July 1993. The issue date of the legal aid certificate is 15 July 1993. The expiry date of the pursuer's legal aid certificate is stated to be 15 July 1994. On 15 July 1994 the Sheriff Clerk warranted the Initial Writ in an action between the pursuer and G A Group Ltd. On the same date the legal aid certificate was lodged. On 29 July 1994 the Initial Writ was served upon G A Group Ltd by Sheriff Officers.

Senior counsel for the first defenders began his submission by highlighting a number of the relevant events in this litigation. In short, the legal aid certificate lodged by the pursuer specified a condition that proceedings be commenced by 15 July 1994. It was the first defenders' contention that proceedings were only commenced against the first defenders two weeks thereafter and were only commenced against the second defenders some 7 years thereafter. It was the first defenders' position that proceedings were commenced when the action was served upon the relevant defenders. Ex facie of the legal aid certificate proceedings had not commenced within the time specified in the certificate.

At that point senior counsel for the second defenders pointed out that the legal aid certificate contained the words that it "shall cease to have effect" unless proceedings were raised within the specified time. Both the second defenders and the pursuer were affected by this. If the certificate continued in effect then it was misleading. At this point Mr McKay referred to the Legal Aid Handbook and in particular paragraph 5.1.5. At this point I record that Mr McKay was content to say that if the Board say, as a matter of fact, the pursuer is legally aided then he would accept that. This was a concession which he later withdrew in the course of the debate.

For the first defenders, Mr Mitchell accepted there was a difference between a legal aid certificate and a grant of legal aid. So far as the pursuer was concerned if there was an error in the certificate that was something between himself and the Board. However, as between other parties that was a different matter. The legal aid certificate was a public record of the grant of legal aid. It was a public assertion by the Board to the solicitors for the pursuer that the pursuer was a legally assisted person. Unless the Board were saying that the certificate was inaccurate then the court had to proceed on the basis that it was accurate. His clients did not accept that the Board could assert the certificate in some way did not matter.

Mr Haggerty for the Board then made his submissions. He divided them into three propositions:-

The general issue as to the effect of the condition contained in the legal aid certificate;

Whether in this particular case the condition was complied with (ie. the commencement of proceedings);

Were the proceedings were commenced timeously?

Mr Haggerty began by drawing my attention to the legal aid scheme which pre-dated the 1986 Act. Prior to the 1986 Act, legal aid was administered by the Law Society of Scotland. He drew my attention to the 1958 Regulations, and in particular Article 16(2). Those Regulations provided:-

"(2) Subject to the provisions of the Regulations, the Supreme Court Committee or Local Committee, as the case may be, shall issue a legal aid certificate and determine the date as from which it shall have effect:

Provided that:

(a) The effective date of the legal aid certificate shall be the date of receipt of the application for legal aid by the Committee concerned or such later date as the Committee shall think fit having regard to all the circumstances of the application;

(b) A legal aid certificate shall cease to have effect unless the summons, defences or other Writ relating to the applicant's initial interest in the proceedings and the certificate are lodged in Court within 3 months or, in the cases in which the induciae is 84 days, five months, or such longer period as the Committee may determine from the date of the certificate."

Article 16 showed that the practice of requiring the lodging of a Legal Aid certificate had existed for quite some time. Secondly, it is clear from that regulation that the appropriate time ran from the date of lodging of the summons and not from service.

The specific provisions were replaced when the 1986 Act, and regulations, came into effect. It is important to note that there are no equivalent provisions in the 1986 Act or regulations made thereunder equivalent to Article 16(2).

Sections 14 and 15 of the 1986 Act set out three statutory criteria in relation to the grant of Legal Aid (probable cause, reasonableness and financial eligibility). If these criteria were satisfied the Board must make legal aid available. Furthermore, once legal aid was granted it continued to be available unless it was withdrawn. The criteria for withdrawal of legal aid were limited. Regulations 29 - 31 of the Civil Legal Aid (Scotland) Regulations 1996 ("the 1996 Regulations") dealt with termination. There was no express statutory power for the Board to withdraw legal aid other than in accordance with these regulations. Mr Haggerty accepted that the only power given to the Board to attach conditions to the grant of legal aid are those set out in section 14(2) of the 1986 Act. The grant of legal aid is something which is quite different from the certificate. The certificate does not make legal aid available. Indeed, if one looks at the legal aid certificate in this case the effective date of the certificate is said to be 8 July 1993 but its issue date is 15 July 1993. In other words, the effective date (8 July 1993) is the date upon which the statutory tests concerning the grant of legal aid are satisfied. Mr Haggerty accepted that the Act of Sederunt (Civil Legal Aid Rules) 1987 (which, for ease of reference, I will refer to as the "1987 Rules") provide, in regulation 1, that "legal aid certificate" means "the document issued by the Board making civil Legal Aid available." Mr Haggerty criticised this Rule because, on no view of the 1986 Act did the certificate make legal aid available.

Mr Haggerty pointed out that a legal aid certificate may contain endorsements thereon and that sometimes those endorsements are changed. They unfortunately do not always make the way onto the certificate.

Accordingly, the Board distinguishes between the grant of legal aid the issue of the legal aid certificate. The certificate does contain upon it a condition that an action should be raised within 12 months. However, just because an action has not been raised within the 12 month period does not mean that legal aid is terminated. Indeed, as a matter of practice, it is often not in anybody's interest that proceedings be raised. Solicitors will often come back to the Board, explain the position and, provided that they are acting reasonably then the Board will often extend the period within which proceedings should be raised. If, contrary to Mr Haggerty's submission, the certificate and legal aid "expire" then it would mean solicitors for, in this case, the pursuer would require to submit a fresh legal aid application and it would also follow that the solicitors might not be paid for the work which has been done. Put another way, Mr Haggerty submitted, the legal aid certificate did not "self-destruct".

The purpose of the 1987 Rules was to notify opposing parties that the particular party was an assisted person. Clearly that would be an important fact for opposing parties to know.

In relation to the question of what is meant by commencement of proceedings as set out in the certificate, the Board's position is that it was the date of warranting not the date of service of the Writ. If the significant date was the lodging of the Writ (ie. 15 July 1994), then it followed that proceedings had been commenced timeously.

At this point I then heard Mr I G Mitchell, senior counsel for the pursuer.

Mr Mitchell expressly reserved his position as to whether proceedings had been commenced timeously. It was agreed amongst all parties that the debate should focus upon the effect of the condition in the legal aid certificate rather than whether the condition had been satisfied.

As a matter of law, Mr Mitchell adopted all that had been said by Mr Haggerty.

It was clear from sections 16 and 18(2) of the 1986 Act that the pursuer could only seek modification of his liability for expenses if he was an "assisted person". The granting of a certificate was not synonymous with the granting of legal aid. Section 14(2) set out the basis upon which the Board was entitled to attach conditions to a grant of legal aid. Read short, section 14(2) enables the Board to attach conditions so as to enable it to satisfy itself that it is reasonable for a person to continue to receive legal aid. If the certificate had the effect contended for by the defenders (ie. an automatic end to a grant of legal aid) it would mean that the Board was fettering in advance the discretion that it had under section 14(2).

Mr Mitchell referred to regulation 19 of the 1996 regulations which required the Board to give notice in writing of its decision to grant or refuse legal aid to certain parties. This was consistent with a distinction between the effective date of the certificate (ie. the date upon which the decision was made) and the issue date of the certificate. I should add that parties were agreed that although this certificate was issued in terms of the legal aid regulations of 1987, for material purposes, there was no distinction to be drawn between those regulations and the 1996 regulations.

Mr Mitchell then referred to the 1987 Rules. On the face of it, the 1987 Rules were of no effect. Echoing what Mr Haggerty had said, the definition of "legal aid certificate" in Rule 1 was not correct. There is no document which constitutes, as opposed to is evidence of, a grant of legal aid. One could therefore say that all of the following Rules were otiose because that what a party was required to do has no substance. Alternatively, if the Rule did have some content it could only be as a document falling within the terms of regulation 19 of the 1996 Regulations. Even so, that could not elide the distinction between the grant of legal aid and evidence of the grant of legal aid.

Clearly Regulation 3 of the 1987 Rules did have a rationale. It is an important matter for a litigant to know that his opponent is legally aided because that carries with it certain consequences.

Turning to the certificate itself, it clearly distinguished between effective date and issue date. The use of the word "thereon" in the narrative at the top of the legal aid certificate must clearly be wrong and must be "hereon".

If the condition was not satisfied (ie. the issuing of proceedings within the time specified) the only consequence was that the certificate ceased to have effect, not the grant of legal aid. Either the pursuer was legally aided or he was not and if he was in receipt of a grant of legal aid by the Board then he was "an assisted person" for the purposes of the legislation. One could not allege reliance upon the certificate because the certificate itself gave rise to no basis upon which to rely.

Senior counsel for the pursuer then made reference to certain items of correspondence which, he submitted showed that there was no real fundamental dispute as to the status of the pursuer as a legally aided person. He disputed the defenders could be said to have relied upon the certificate to any extent. The legal aid legislation gave rise to a certain standing or relationship as between the pursuer and the Board. The defenders are in a similar position to members of the public reporting a wrong to the police. It is the Board that is entrusted to run the scheme. The relationship is bilateral. The locus of other parties is constrained. If the court is therefore satisfied by an assurance from the Board that the Board considers the pursuer as legally aided then the court has the power to modify any award of expenses.

Accordingly, the court ought to accede to the pursuer's motion to modify the defenders' motion to find the pursuer liable in the expenses of the action so as to specify that such liability is as an assisted person.

I should say at this point Mr Mitchell accepted that there was a separate issue in relation to the second defenders as to whether legal aid had been granted in respect of the second defenders or some other corporate entity and that issue would have to be held over.

Mr Jonathan Mitchell then resumed his submissions. For the first defenders, he submitted that the fundamental problem was whether the certificate is something upon which the defenders were entitled to rely. It had nothing to do with the question as to whether, as between the pursuer's solicitors and the Board, the pursuer was legally aided.

In effect, the submissions of the Board and the pursuer led to the consequence that the legal aid certificate was "a glorified practical joke". However, the 1987 Rules were Rules made under section 38 of the 1986 Act. They are there and must have some substance.

The logical effect of the position of the Board and the pursuer was that if no legal aid certificate was ever issued at all a pursuer would still be entitled to say that he was a legally assisted person and that status would affect other parties.

In Mr Mitchell's submission, this case involved a fundamental principle of constitutional law and that is that no decision having legal effect, in the absence of an express statutory language, has effect before the date of effective intimation to affected parties.

In this context the decision could not have effect upon third parties until the date of its intimation. It is the legal aid certificate which has the legal effect and intimation of that is the date upon which it has effect.

In support of this submission, Mr Mitchell referred me to the case of R v The Home Secretary ex parte Anufrijeva [2003] 3 WLR 252. What the pursuer and the Board were arguing is that, in effect, notification of the decision by means of the legal aid certificate has no ultimate practical effect because the pursuer has an underlying status of being a legally assisted person. That was not correct and at the same principles in the Anufrijeva case applied here. So far as his clients were concerned what has legal effect as regards them is what is notified to them and what was notified to the first defenders was a certificate subject to certain conditions. The certificate contained the unqualified words "shall cease to have effect". The first defenders were entitled to take this at face value. Mr Mitchell was at pains to say that there was no question of any moral culpability by the pursuer's agents. In this case it was simply a question of what the certificate meant in terms of the relevant legislation.

The 1987 Rules were correct to refer to the certificate because it is that which deals with the litigation between parties. The 1958 Rules to which Mr Haggerty had referred clearly showed the derivation of the current condition contained in the certificate.

Mr Mitchell then referred to the case of Westwater v Westwater 1982 SLT 305 which dealt with the issue of the validity of a legal aid certificate. There are no differences in the present scheme. That case was authority for the view that it was the certificate which was the measure of the grant.

Mr Mitchell then referred to paragraph 5.15 of the Board Handbook dated 9 April 2001 which, in his submission, clearly made some reliance upon the issue of a certificate. The same went for paragraph 5.14.

So far as the submission by senior counsel for the pursuer was concerned to the effect that a 12 months "cut off" date would be ultra vires the Board, there was nothing unreasonable about imposing a condition that the certificate should cease to have effect if proceedings were not issued within a 12 month period. If is was reasonable to get legal aid it was reasonable that, if no litigation was raised, then one should no longer have legal aid. Such was a proper policy objective of the Board. In any event, it would be open to solicitors for an assisted person to ask for the condition to be modified in advance of the expiry of the relevant period.

Without conceding that the relevant date was the date of warranting, as opposed to the date of commencement of proceedings, upon the former hypothesis, as a matter of law Mr Mitchell submitted the pursuer was not an assisted person and was not entitled to ask for modification of any award of expenses against him.

Mr McKay then commenced his submissions. As I have already said, he withdrew the earlier concession he had made to the effect that if the Board were content that the pursuer was a legally assisted person he would abide by that. I should add no objection was taken to the withdrawal of the concession. As I have him noted, the concession was originally made in the expectation that certain things would be said by the Board which appeared not to have been said.

Mr McKay referred to the text of the certificate itself. It provided:-

"This is to certify that...legal aid has been made available..."

The certificate goes on to say that legal aid is made available "subject to any conditions..." it follows that the grant itself is subject to the condition. The certificate is one and the same as the grant and it has never been suggested that the grant is something different from the certificate itself. One should therefore read the words "cease to have effect" as affecting the grant itself.

So far as reliance is concerned, the second defenders had assumed, as they were entitled to do, that the pursuer was legally aided and was legally aided subject to this condition.

Mr McKay then submitted that the grant of legal aid as against what is now the second defenders did not match the corporate entity identified in the legal aid certificate which authorised the commencement of proceedings against them. He reserved his position in that respect.

In reply, Mr Haggerty submitted that if the principles contained in Anufrijeva were to apply in this case and generally then it would have a significant effect upon decisions made by the Board. In any event, one can see why, in the context of the facts of the Anufrijeva case the result might have been unfair but the issues here are different.

As a matter of law, sections 14 and 15 set out the legal basis of the grant of legal aid and therefore, as a matter of law, the defenders could not be in any doubt as to the effect of that. As I have him noted, Mr Haggerty submitted that the certificate amounted to intimation of the grant of legal aid under regulation 19 of the 1996 Regulations.

So far as the case of Westwater was concerned, this was a decision made under the old scheme. Under the current scheme, whereas the Board could attach conditions, provided they complied with section 14(2) the Act does not permit the Board to create a situation in which the grant of legal aid would, in effect, "self-destruct" after a period of time. The Board could restrict the certificate in terms of certain conditions but could not restrict it in terms of time.

The grant of legal aid was not conditional. From the moment the certificate is granted the Board are then under an obligation to pay the solicitor for the work done. If that was not the position and the certificate did "self-destruct" then it would follow that the solicitor would not get paid for the work done.

So far as the Guidelines are concerned, in the context of medical negligence, a Board is not entitled to impose a condition that a certificate comes to an end if, for example, a copy of the record is not sent into the Board within a specified time. The Board could impose such a condition but breach did not lead to an automatic end to the grant of Legal Aid.

In reply, senior counsel for the pursuer, did not dispute the general application of Anufrijeva. On its facts it was clearly sensible. There was a need to communicate a decision to the person who was affected by the decision. In this case however the defenders were in an anomalous position. They were not a party to the grant of legal aid.

Regulation 19 of the 1996 Regulations required the Board to give notice of its decision. The certificate itself said that "Legal Aid has been made..." The issuing of the certificate is publication or notification of the Board's decision. The 1986 Act and Regulations provides a mechanism for withdrawal of legal aid. Section 14(2) limited the right of the Board to attach conditions. Repeating his earlier submission, the Board could not, in advance, provide that legal aid would cease to be available if certain things were not done because to do so would be to fetter its own discretion.

In summary, the condition is ineffective because the legal aid had been granted. The condition provides that the certificate ceases to have effect, not the grant of legal aid. All the certificate amounts to is notification of the decision, a decision already made.

Decision:

I start from the legal proposition that the Board is a statutory body created under and in terms of the 1986 Act. It may only act within the powers and duties conferred upon it by the 1986 Act.

The 1958 Scheme to which Mr Haggerty referred is instructive in as much as it gives some historical background. That Scheme was made pursuant to section 8 of the Legal Aid and Solicitors (Scotland) Act 1949. It does not seem to me that I can derive much support for the interpretation of the 1986 Act from the Scheme and practice prior to the coming into force of the 1986 Act. It is also for that reason I am not minded to attach significance to the case of Westwater v Westwater, to which I was referred. The current legislation is in different terms to the 1958 Scheme.

"Civil legal aid" is defined in section 13(2) of the 1986 Act. Read short, it means representation by a solicitor and, where appropriate, by counsel, for certain categories of proceedings.

I quote from section 14(1) and (2):-

"(1) Subject to section 15 of this Act and to sub-section (2) below, civil legal aid shall be available to a person if, on an application made to the Board -

(a) The Board is satisfied that he has a probabilis causa litigandi; and

(b) It appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.

....

(2) The Board may require a person receiving civil legal aid to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive civil legal aid."

Section 15 prescribes certain financial conditions which an applicant must meet if he is to be eligible for a grant of civil legal aid. In short, before an applicant is entitled to a grant to legal aid he must have probable cause, the Board must be satisfied that it is reasonable to grant legal aid and he must satisfy the test of financial eligibility. If he does, then, as section14(1) prescribes, civil legal aid "shall" be available to that person.

I have quoted section 14(2) in full because it is the only statutory provision which empowers the Board to attach conditions to the grant of legal aid. In my opinion, the use of the word "reasonable" in section 14(2) is a reference back to the word "reasonable" in section 14(1)(b). Just because it is reasonable that legal aid be granted at the outset of proceedings does not necessarily mean that the Board may not revisit the question of reasonableness in the future. I note also that regulation 27 of the 1996 regulations gives to the Board the power to impose conditions by virtue of section14(2).

Section 36 contains the power, inter alia, to make regulations to prevent abuses of the 1986 Act. Section 38 contains the statutory power to make rules of court in relation to legal aid.

The 1996 regulations set out, in detail, how applications are dealt with. I will not set these out in detail but summarise as follows.

Once the application is submitted, unless the provisions of regulation 7(2) apply, notification of the application for legal aid requires to be made to any opponent. That opponent has an express right (conferred by regulation 8) to make representations in writing to the application and the Board is obliged to consider such representations before determining the application. Such representations will no doubt form part of the Board's assessment as to whether the applicant has shown probable cause and whether it is reasonable that a grant of legal aid be made.

Once the Board has made its decision then notice of that decision, whether it be to grant or refuse legal aid, has to be given in writing to the applicant and any opponent. I note that regulation 19(1) provides that the Board shall give "notice in writing of its decision to grant or, as the case may be, refuse legal aid". Notification is made of the decision. There is nothing in regulation 19, nor indeed in any of the other regulations which prescribes the form which such notification must take. Provided it is in writing, it is left to the Board as to how it should be done.

Nowhere in the 1986 Act, nor in the 1996 Regulations is there any mention made of a certificate. Nor is there any express provision which relates to a Board's power, or indeed duty, to issue certified copies of its decisions or acts.

It is only within the 1987 Rules that one finds a reference to a legal aid certificate. Even then, it appears only in rules 1 and 3.

Rule 1 states:-

""Legal aid certificate" means the document issued by the Board making civil legal aid available; ".

Rules 3(2) and (3) provide, read short, that an assisted person shall lodge the legal aid certificate in process and intimate the lodging to all other parties to the cause.

I am bound to say, with great respect, that the definition given to "legal aid certificate" in rule 1(1) does not seem to me to be an accurate statement of the law. Whatever else it may do, the legal aid certificate does not "make" civil legal aid available. It is the decision of the Board that makes civil legal aid available.

That a party to a litigation is an assisted person is an important fact for any opponent to know. Firstly, under and in terms of section 18 of the 1986 Act the grant of legal aid gives to such a party the potential right to seek modification of any award of expenses to which he might otherwise be liable. If the unassisted party knows that he confronts a legally assisted pursuer, knowledge that the pursuer is legally aided will be an important factor in determining how the litigation is conducted. Secondly, the unassisted party will know that if he suspects there are any grounds upon which legal aid should be withdrawn he has the right to make representations to the Board to that effect (see regulation 32A of the 1996 regulations). In addition to the provisions which I have quoted, the 1987 rules also contain an obligation that the words "assisted person" follow the name of the assisted person on every step of process in the proceedings to which he is a party. It seem to me a reasonable conclusion to draw that the purpose of rule 3 is to enable an unassisted party to know that he is engaged in litigation with someone who has the benefit of legal aid. However, I note that the 1987 Rules do not impose any express sanction for failure to comply with the terms of rule 3.

The result of this seems to me that a legal aid certificate has no special status conferred upon it by either the 1986 Act or the 1996 Regulations. In my respectful opinion, Mr Haggerty is correct when he submitted that once legal aid is granted the Board's powers to withdraw legal aid are constrained by the 1986 Act and the 1996 Regulations. In the case of the latter the regulations are, in themselves, constrained by the terms of section 36. The power to attach conditions, and the nature of any conditions is constrained by section 14(2). However, it also seems to me that the Board is put in a difficult position. In order to satisfy the 1987 rules, a certificate has to be issued even though it respectfully seems to me that the certificate has no status under the primary legislation.

Be that as it may, a certificate has been issued in this case and has, or purports to have, a condition attached to it.

To some extent, the certificate fits the analysis that there is a distinction between the grant of legal aid and the legal aid certificate itself. The certificate states that legal aid "has been" made available. That is clearly phrased in the past tense. That the effective date of the certificate is a date other than the date of issue also supports the view that the grant is different from the certificate.

As I have already said, the Board's power to attach conditions to the grant of legal aid is limited by section 14(2) which implies that an applicant requires to do something (eg. provide information) which will then enable the Board to satisfy itself that it is reasonable for the applicant to continue to receive civil legal aid. It seems to me implicit in the wording of section 14(2) that, if the Board then receives information that leads it to the conclusion that it is no longer reasonable for the party to continue to receive civil legal aid, then it may then make a decision to withdraw legal aid. Otherwise, there would be no point in the sub-section. However, I think there is some force in the argument of senior counsel for the pursuer that the sub-section conveys the exercise of a judgement by the Board in the light of information which it subsequently receives rather than a determination at the outset that legal aid shall cease to be available upon the occurrence of a specified event in the future (see regulation 30 of the 1996 regulations).

I have some sympathy with the submission by senior counsel for the first defenders that the practical effect of the Board's submission to me is that they have issued a certificate with a condition attached to it which has no practical effect. If the grant of legal aid is unaffected by the failure to comply with the condition what then does it mean? Taken literally, it is the "certificate" which ceases to have effect. As I have already said, the certificate has no standing under the legislation at all and is not the grant of legal aid. If that is correct, the condition attached by the Board has no practical effect because the grant of legal aid continues notwithstanding failure to satisfy the condition. Nevertheless it seems to me that there is no other conclusion I can reach standing the terms of the 1986 Act and the 1996 regulations.

I am not persuaded that the Anufrijeva case leads to a different conclusion. I can well understand that, on the facts of that case, notification of the decision was, on any view, something the claimant for asylum was entitled to. It was her application under consideration and her entitlement to income support. In this case the applicant is the pursuer. The defenders have the right to make representations to the Board and the Board has a duty to consider these representations but once the grant is made, then the pursuer is legally aided subject to the powers of the Board, put loosely, to reconsider the position. The condition, if not satisfied, does not have the effect of terminating the grant of legal aid because it seems to me on its own terms it could not. It is a different position from Anufrijeva where the applicant lost an existing entitlement without having been told that it had been withdrawn. It respectfully seems to me that the condition was something as between the Board and the applicant rather than a condition which had the effect of terminating an entitlement to the grant of legal aid. Having said all of the foregoing, I do have some sympathy with the defenders' position. Regardless of the true effect of a legal aid certificate the attachment of the condition is, at the least, unhelpful. In my respectful view the 1987 Rules require reconsideration. The rationale behind the notification provisions is clear but the method by which it is done ought to square with the primary legislation.

My conclusion is that, esto proceedings were not commenced within the time specified in the legal aid certificate, an issue upon which I express no view, the pursuer did not cease to be an assisted person. However, as senior counsel for the second defenders has a further motion in respect that the grant of legal aid was against a corporate entity other than the second defenders I will make no order as to the motion for expenses against the pursuer until that issue is resolved. I shall continue consideration of all motions for expenses to a date to be fixed.

SHWH.AH.Connelly.12.09