Court dismisses appeal in relation to the discretion to waive the Legal Aid “statutory charge”


Re: R (Faulkner) v Director of Legal Aid Casework [2018] EWCA Civ 1656

This appeal concerned the discretion to waive the Legal Aid “statutory charge” in circumstances in which the charge would be recouped from damages awarded as compensation for a breach of ECHR, art 5(4).

The Court dismissed the appeal for a number of reasons. Firstly, it appeared that although art 5(5) contains an express right to compensation, there is nothing to suggest that a breach of art 5 is different from the breach of any other Convention right. Further, para [201] of the Scordino decision was a case concerned with art 6 rights and “fixed costs or taxes under a domestic system which may create an unreasonable restriction on the right to lodge an application seeking redress for the failings of the judicial system and thus amount to an infringement of the right of access to a tribunal; and at its highest, with legal costs which place an “excessive burden” on litigants where their application for relief from breach of a Convention right is justified. There is no suggestion in this case that the legal costs themselves were excessive”.

Also, “in this case, Mr Faulkner did not seek merely to defend his award of damages in the Supreme Court. He sought an increase in the amount of damages awarded, was granted permission to cross appeal on new and additional grounds and lost … Having lost the appeal and the cross-appeal in which greater compensation was claimed, he cannot now seek to be insulated from the consequences by praying in aid his Convention right”.

Finally, if the submissions on behalf of the claimant were taken to be correct, “a legally aided litigant would be placed at an advantage in this respect over one who is privately funded and in effect, would be treated as if his Convention rights were more extensive or were entitled to greater protection than the privately funded litigant. That cannot be correct”.

Paul Nicholls QC and Hugh Southey QC were involved in this case.