Cited cases
- All England Lawn Tennis Club (Championships) Ltd and another v McKay [2019] EWHC 3065 (QB)
- Brown v London Borough of Haringey [2015] EWCA Civ 483
- Re O (committal: legal representation) [2019] EWCA Civ 1721
- King’s Lynn and West Norfolk Council v Bunning [2015] 1 WLR 531
- Chelmsford County Court v Ramet [2014] EWHC 56 (Fam), [2014] 2 FLR 1084
- H v T (Committal Appeal: Notices on Orders) [2018] EWHC 1310 (Fam)
Background
Obtaining publicly-funded representation when facing committal proceedings for contempt of court is, and was, a tortuous process and, for many, it was believed that legal aid was simply not available in such circumstances.
Historically it was acknowledged that a court could grant legal aid where the contempt was ‘in the face of the court’, but what about the situation where an individual fails to comply with a court order, with penal notice attached, or swears an affidavit or witness statement which they know to be untrue?
As will be readily apparent, this type of situation can arise in any and all disciplines, whether that be family, civil, regulatory, inquests, or the myriad of other fields that may be litigated in non-criminal courts.
The case of Brown is probably the best starting point and establishes the principle that legal aid is available and, further, that the court should make an alleged contemnor aware of its availability; this is also set out in CPR PD 81, para 15.6(2). Brown, recognising the difficulties of this somewhat opaque area, urged the following:
“I would encourage the LAA, the Courts Service, the judiciary, the professions and the voluntary organisations (that assist litigants) to co-operate in ensuring at an early stage in committal proceedings that all concerned are aware of the authority to which legal aid applications in such cases are to be made and what the entitlements are.”
The bite of Brown and its principles was exemplified in Re O, where a committal was overturned by the Court of Appeal where the contemnor was not properly advised as to their entitlement to representation and the availability of legal aid.
The Issue – Who Can Grant Legal Aid?
Now we’ve established that legal aid is available to an alleged contemnor, the next step is who or what may grant legal aid for a non-‘face of the court’ contempt? The availability of legal aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), but, until a very recent case, there was dispute between the Legal Aid Agency and the Courts about who may grant legal aid in such circumstances, who was the ‘relevant authority’ under LASPO?
As an example, in the land-law case of Bunning, a case concerning a court order preventing parties from using land for residential purposes, Blake J came to the conclusion that the relevant Legal Aid rules allowed the High Court to grant legal aid to an alleged contemnor.
A number of contemporary cases to Bunning, assumed that legal aid could be granted by the High Court and this became the understood position, despite the protestations of the LAA. For instance, a number of family-law-related contempt cases have relied on Ramet, (where Sir James Munby, President of the Family Division, granted legal aid) as supportive of the proposition that legal aid could be granted by a judge of the High Court, simpliciter. But, when one looks closer at Ramet, it can be seen that this case involved contempt in the face of the court (a violent attack during court proceedings), and therefore did allow legal aid to be granted by a judge of the High Court (the case was transferred from the County Court).
But all that being said, and although on closer inspection the limits of Ramet were readily discernible, it is not surprising that where other High Court cases such as Bunning have been decided, practitioners (and Judges, including Judges sitting in the Court of Appeal, see H v T as an example) have understood that the High Court was the ‘relevant authority’ for granting legal aid.
What’s Changed?
All England Lawn Tennis Club took a fresh look at the issue and put to one side the assumptions made in previous cases.
By way of background, the Claimant issued proceedings against the Defendant to prevent him from continuing to trade in ‘not for resale’ type tickets over Facebook. He used a pseudonym for the purposes of this Facebook profile. An interim injunction was obtained; first, prohibiting him from selling tickets to the 2019 Championships and also a mandatory ‘deliver up’ style injunction in relation to certain information and any remaining tickets. The injunction contained the usual penal notice.
Thereafter, the litigation moved somewhat slowly through the court system, largely due to the defendant’s unavailability and alleged non-compliance. Various reasons were given by the defendant in correspondence as to why he could not attend various court hearings or provide certain information. However, the availability of legal aid, and by whom it may be granted, became a central feature in the case. The court invited submissions from the LAA on this issue and also took the opportunity of reviewing the relevant case law on this issue.
The court decided that the previous case of Bunning was wrongly decided and although a number of later authorities had referenced the case more broadly, with approval, this did not impinge upon the narrow issue at hand.
In conclusion, the court in All England Lawn Tennis Club found as follows:
- a respondent to High Court committal proceedings alleging breach of an order is entitled to legal aid as of right (the issue of means is irrelevant);
- it is a separate question: who is the ‘relevant authority’ responsible for determining eligibility for the purposes of s. 16 of LASPO? In High Court committal proceedings alleging breach of an order, the ‘relevant authority’ is the Director of Legal Aid Casework, not the court. Therefore, in this regard, Bunning was wrongly decided;
- this should have no practical effect on the availability of legal aid because the LAA has an established procedure for determining applications expeditiously.
Litigants and providers of legal services should be encouraged to use this procedure and should not now apply to the High Court for representation orders.
Conclusions
It looks like the issue has finally been clarified. The High Court in All England Lawn Tennis Club determined that the ‘relevant authority’ for granting legal aid (court depending) is as follows:
| Court | ‘Relevant Authority’ |
|---|---|
| Supreme Court | Supreme Court/Court of Appeal |
| Court of Appeal | Court of Appeal |
| High Court | Director of Legal Aid Case Work |
| County Court | Director of Legal Aid Case Work |
Helpfully the judgment also set out the process for applying to the Director of Legal Aid Case Work, and includes the following link: www.gov.uk/guidance/apply-for-legal-aid-for-civil-contempt-cases.
Finally, the court noted that: “given that legal aid for proceedings of this kind does not require any assessment of either means or merits, one would expect that procedure to be capable of resulting in a determination very quickly”. To many criminal practitioners such a system is likely to be a breath of fresh air.
Richard Shepherd
