Costs Funding

March 23rd, 2017

In HB v A Local Authority and The Local Government Association (2017) EWHC 524 (Fam) MacDonald J rejected an argument that the High Court had by reference to ECHR Articles 6 and/or 8 to order a local authority to fund the legal costs of a person denied legal aid on means test grounds without breach of the ECHR and lawfully.  The argument constituted an impermissible attempt to circumvent the jurisdiction of the Administrative Court operating by reference to judicial review principles.  Nor did the inherent jurisdiction of the High Court with respect to children give it the power to require a local authority to incur expenditure to fund the legal representation of a litigant who had been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament. Authority for public expenditure required clear statutory authority.  This had to be in clear, express and unambiguous language.  Within that context, a general power or duty could not be used to circumvent a clear statutory code. The examples of cost funding jurisdictions relied on as indicating that the Court could properly find a power under the inherent jurisdiction to make a costs funding order against the local authority each had as their foundation a clear and unambiguous statutory power to award funds for a specific purpose.  There was no suggestion in the statutory code that Parliament intended the civil Courts to be able to make orders providing the funding for advice and representation outside the terms of the statutory scheme.  In circumstances where the Legal Aid Agency had taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse legal aid, an order under the inherent jurisdiction for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to sidestep a clear statutory code using a general power.

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