Funding reliance on the question of interestJuliet Herzog discusses the role of the public interest advisory panel in providing advice on funds for those cases of significant public interest.A person dies after being sprayed with CS gas by the police.

Should the family be allowed public funding for representation at the inquest? The disposal of nuclear waste at a military site leads to a request for funding to bring judicial review proceedings.

Should public money be spent? The answer is yes only if the case has a significant wider public interest.

But what is a public interest case? How does the Legal Services Commission go about deciding which cases merit funding?Central to this new role is the public interest advisory panel, established by the LSC last year to provide advice on the public interest aspects of applications for funding.

As a non-executive commissioner, it is my responsibility to chair the panel.

A number of experts have been nominated to make up the panel, from Liberty, Justice and the Public Law Project as well as the Bar Council, the Law Society and the Consumers Association.The panel was created out of the funding code under which all civil applications now fall.

Its job is important and challenging because public interest represents a wholly new criterion for funding.

While the 1988 Act was in force, public interest could simply not be considered if an application fell outside the framework of the civil legal aid scheme.

The funding code clearly separates two ways in which public interest might arise in individual cases.

There is a general public interest in cases which allege abuse or excess of powers - legal or otherwise - by public bodies, usually by way of judicial review or actions in tort, for example, against the police.

This type of public interest, in so far as it is inherent in this type of case, is acknowledged by less stringent criteria in the funding code applicable to these actions, and by a specific priority from the Lord Chancellor.

The panel is concerned with applications, which have 'the potential to produce real benefits for individuals other than the client'.

There are several types of benefit that might flow from an individual case - protection of life, financial benefit, intangible benefits such as health, education and quality of life.The funding code provides general guidance as to the balance between clear and direct benefits, where the numbers of people who receive those benefits might be smaller (for example, a couple of hundred) and less tangible, more speculative benefits, where large numbers of people would need to be concerned.

The crucial point about the panel's work is that applications which might not be considered because they are now excluded (for example, those for personal injury) can be brought within the funding code and become eligible for legal representation or support funding if the panel finds a 'significant wider public interest'.Therefore, the panel's role, is not to grant applications, but purely to advise on the public interest aspects of whatever applications are referred to it.These referrals can come from the special cases unit, which deals with high cost cases and multi-party actions, or from any regional office.

The panel has also been considering the public interest aspect of some applications for funding made to head office and being considered for recommendation to the Lord Chancellor under s.6(8)(b) of the Access to Justice Act.

Any solicitor making an application to the LSC may ask that the application be referred to the panel, although if the application will be granted in any event without the panel finding a 'significant wider public interest', it is unlikely the panel would consider the request.So far, the panel has met four times.

A total of 25 individual applications have been examined, each one in detail and involving vigorous debate among panel members.

Applications have included a fatal accident involving a disabled child; an appeal to the House of Lords on a major point of law in relation to industrial injury cases and representation for the family of a former patient of Harold Shipman at the reopened inquest.As well as deciding whether a case has a public interest, the panel has the difficult task of deciding how the case should be graded: exceptional public interest; high significant public interest; or significant public interest.This is particularly relevant to the application of cost benefit criteria under the funding code for high cost cases.

Over time, the panel expects to develop guidelines and, also, look at decisions of principle.

Summaries of panel decisions are published in our newsletter focus and in the LSC manual.No doubt increasing numbers of fascinating and challenging cases lie ahead as public interest becomes firmly established as part of the new public funding scheme.Juliet Herzog is a member of the Legal Services Commission