Legal aid: persuasive role of the court

Re Perotti (2003) The Times, 27 November, CA

In Re Perotti the Court of Appeal gave most helpful indications as to its ability to recommend the grant of legal aid to a party in particular proceedings.

It pointed out to Mr Perotti, who appeared in person, that it had no power to grant legal aid: that was a matter for the Legal Services Commission (LSC) alone.

That said, the court could recommend grant to the commission.

If a court - especially the Court of Appeal - recommended grant then, thought Lord Justice Chadwick, the LSC was likely to grant, subject to assessment of an applicant's financial circumstances and to an application being made through solicitors in the usual way.

The litigant who sought to establish that access to the courts was impeded by a lack of legal aid had a relatively high threshold to cross.

The test was not: would legal representation make the court's task easier? The court had ample experience of dealing with poorly prepared cases and, despite that, of reaching a just disposal.

The test, under article 6.1 of the European Convention on Human Rights (right to a fair trial) was: was the court placed in the position that it could not be certain to reach a just conclusion because it was not confident that of its ability to grasp the facts and principles of the case?

In Perotti the court had an advocate to the court (amicus curiae).

It is not known whether she, or indeed Mr Perotti, drew the court's attention to the European jurisprudence in this area (it seems inconceivable she did not).

Re Perotti seems to look at article 6.1 and representation from the point of view of the advantage to the litigant of having representation to give assistance to the court; and mainly it is concerned with assistance to the court at, or in preparation for, the final hearing.

The Airey test

Airey v Ireland (1979-80) 2 EHRR 305, by contrast, deals with procedure and representation from the outset of the process.

In Airey, the European Court of Human Rights held that article 6.1 might 'compel the state to provide for the assistance of a lawyer' - legal aid - 'by reason of the complexity of the procedure or of the case' [26].

In Ms Airey's case the lack of availability of legal aid for judicial separation proceedings in Ireland meant 'she did not enjoy an effective right of access to the High Court' and article 6.1 was therefore breached.

For good measure the court also found Ireland in breach of Ms Airey's right to draw to the attention of the High Court the circumstances of her private or family life (article 8).

Court's assistance in application for legal aid

Clients who are involved in court proceedings assisted by lawyers should be told of Re Perotti and Airey.

It is no use to the client to wait till the final hearing.

If a solicitor takes the view that legal aid has been wrongly refused then a letter to the court drawing its attention to these two cases might help.

A personal application by the client to the judge might work as an alternative.

And perhaps both or either courses would best be undertaken at the point of refusal and while an appeal date before the funding review committee is awaited.

Next time you cannot find something in the White Book or, when trying to resolve a point of law or procedure, you get lost in a myriad of case law, rules and statutory provisions, spare a thought for the client acting in person.

The Civil Procedure Rules 1998 have only gone a short step on a long route to making rules accessible to the averagely intelligent layman.

Other rules and statutory provisions are much more daunting.

If we find something only slightly difficult, then that must bring the point well within range of Airey; and, subject to means, the client should surely have legal aid.

By David Burrows, David Burrows, Bristol