HUMAN RIGHTS: Access to Justice Act exclusions and trials in absentia in spotlight Public funding court plea

Automatic exclusions which prevent thousands of people from seeking public funding to back their cases could be left in tatters pending the outcome of a Human Rights Act 1998 (HRA) challenge, it emerged this week.The case follows an application by the Department of Trade and Industry (DTI) to disqualify a woman as a company director.The case, being brought by Sheffield-based Irwin Mitchell, is thought to be the first challenge to restrictions on the grant of public funding introduced by the Access to Justice Act 1999.Generally excluded are most cases arising out of personal injury, disputes arising out of the carrying on of a business, partnership, company or trust, boundary disputes and actions for libel or slander.The Legal Services Commission (LSC) has agreed to fund the action as a test case.Former Law Society official Andrew Lockley, head of public law at Irwin Mitchell, said the refusal of funding appeared to be a breach of the HRA.

He said: 'Potentially, this case has much wider ramifications for public funding of cases, but we will have to wait to see how the judges view the arguments.' Mr Lockley said one argument which was being put forward is that the LSC should have a discretion to grant funding in all cases.

A Lord Chancellor's Department spokeswoman said the Access to Justice Act had been certified compliant with the HRA.Meanwhile, north-west firm Davies Wallis Foyster recently mounted another successful challenge under the HRA and overturned the conviction of John Hayward after he was tried and convicted in his absence.

After an initial trial in 1997, Mr Hayward was found guilty on five out of nine counts relating to failure to pay tax on the import of spirits into the UK and sentenced to three years.After absconding from Ford open prison, he was tried in his absence on the four remaining counts and found guilty.

The Court of Appeal quashed the later convictions on the basis that the court had assumed the trial should go ahead in Mr Hayward's absence but not properly considered the question.

The Court of Appeal also set out guidelines dealing with the trial of persons in absentia, saying that the discretion to proceed should only be applied in 'rare and exceptional' cases.Sue Allen