In a judgment described by the Law Society as ‘disappointing’, the Court of Appeal today overturned a ruling that the government’s safety net scheme for people denied civil legal aid is unlawful. 

Giving judgment in Director of legal aid casework and lord chancellor v IS, Lord Justice Laws concluded that the Exceptional Case Funding (ECF) scheme was ‘not inherently or systematically unfair’.

This follows a High Court ruling last July that the scheme was unlawful.

Mr Justice Collins said then that the application procedure was ‘far too complex’ for applicants in person, while the rigidity of the merits test was ‘wholly unsatisfactory’.

ECF was established as a ‘safety net’ to mitigate the legal aid cuts contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It was intended to protect those whose fundamental rights would be breached in the absence of legal help.

Charity Public Law Project brought the challenge to the High Court as a test case regarding the manner in which exceptional funding has been implemented and operated.

In the appeal court judgment published today, Laws acknowledged there had been ‘real difficulties’ with the scheme, which could be improved. But the ‘picture has changed for the better’, he said, adding that ‘there has been what I have called a learning curve, both for the Legal Aid Agency and for providers’.

Laws recognised that the scheme was ‘heavily dependent’ on the participation of providers. However, knowledge of providers’ attitudes to the scheme was ‘partial at best’, he said.

‘So far as we can ascertain, their response to its challenges is by no means uniform, and in the nature of things will not be static. The learning curve will continue.

’The extent of the difficulties is however troubling. No doubt the LAA and the lord chancellor will be astute to look for improvements, and will do so on a continuing basis.’

Laws allowed the appeal, setting aside declarations made by Collins last year. Lord Justice Burnett agreed, but Lord Justice Briggs dissented.

Briggs said the ‘defects’ in the procedures for applying for ECF in the system in place at the time of the High Court hearing were ‘systematic’.

He said an application process inaccessible to most litigants in person, combined with the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, made the scheme ‘inherently defective and therefore unfair’.

He added: ‘It may well be that improvements in the management of the handling of applications will address many of these concerns, but it is not easy to see how experience of making ECF applications which, even now, have only a 13% success rate, will provide an economic model which encourages solicitors to undertake the work or reduce the amount of chargeable time required to a level which enables solicitors to accept a retainer for that purpose from would-be clients who, ex hypothesi, cannot afford to pay it.’

The Ministry of Justice welcomed the judgment, but a spokesperson said the department ‘will now consider urgently what steps to take in response to the court’s findings’.

Law Society chief executive Catherine Dixon commented: 'It is of the utmost importance that people can access legal advice when they need it. We are therefore disappointed with the judgement, particularly in view of the significant factual criticisms previously made by Mr Justice Collins of the way the scheme is operating.

'These include concerns about the complexity of the form and the difficulties litigants in person face in making applications, which even Lord Justice Laws acknowledged was “troubling”.'  

She added: 'The scheme was intended to be a safety net for claimants whose cases fell outside the scope of civil legal aid following the cuts implemented by LASPO. The MoJ estimated that there would be around 6,000 applications for Exceptional Case Funding. However in 2014-15 only 1,172 applications were made with only 223 granted (106 of which related to the pre-LASPO ECF scheme for inquests).’

’We share Lord Justice Briggs’s concerns about the way the system operates. We wait to see whether an appeal will now be lodged.’

Public Law Project has been approached for comment.