Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 151
P716/09	OPINION OF LORD WHEATLEY in the Petition D W (AP) Petitioner; for A Judicial Review of a decision of the Scottish Ministers to issue two Directions relative to Legal Aid for Defamation proceedings ­­­­­­­­­­­­­­­­­________________

Petitioner: Henderson; Drummond Miller LLP

Respondents: Poole, Scottish Government Legal Directorate

13 November 2009

[1] In January 2007 the petitioner raised an action for damages against Edinburgh City Council. In 2001 he had formed a relationship with a woman, and the couple wished to have children. For various reasons this was not possible without assistance, and the petitioner approached his local National Health Service Trust to obtain a form of fertility treatment. Following their normal practice, and in terms of their duty under section 13(5) of the Human Fertilisation and Embryology Act 1990 to take account of the welfare of any child who may be born as a result of the treatment, the Trust made inquiries of Edinburgh City Council's Social Work Department (in whose area the petitioner had formerly lived) about his background. The Council responded to the Trust, and also replied to the petitioner on 30 September 2004, to the effect that in the Social Work file kept by the Council there was noted an allegation that the petitioner had been in prison for murder. The immediate consequence of this was that the Trust told the petitioner that treatment would not be offered to him and his partner, although it seems it had previously indicated that such treatment would be provided. Subsequently, the Council indicated to the Trust that despite a most extensive investigation, it had not been possible to confirm what had been said about the petitioner noted in their files, and concluded that the allegations should be regarded as unfounded. The offer of fertility treatment was not renewed. The petitioner and his partner went abroad for private treatment, for which they paid, and which proved to be successful.

[2] The petitioner received emergency legal aid from the Scottish Legal Aid Board for the limited purpose of raising his action against Edinburgh City Council. This was in accordance with the Board's normal practice and allowed the petitioner to draft and lodge a summons in court. The action for damages raised by the petitioner was based on negligence, and also on an alleged violation of his rights under Articles 6(1), 7(1) and 8(1), (3) and (4) of the European Convention on Human Rights, as a result of the Council's infringement of those rights by giving false information to the Trust. The damages claimed were first for solatium and secondly for the cost of the private fertility treatment for which the petitioner and his partner had paid. When the petitioner applied for full legal aid, which he required to prosecute his claim, this was refused by the Scottish Legal Aid Board.

[3] The reason for the Scottish Legal Aid Board's refusal of legal aid was because, as the petitioner avers in the present action, his claim for damages, while in part based on negligence and violations of human rights, was essentially one of defamation. Formerly actions of defamation had been excluded from the categories of action for which the Board could offer financial assistance. However, legal aid became available for defamation and verbal injury actions in certain circumstances by virtue of section 71(3)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007 asp.5. This section introduced the possibility that legal aid might be offered in defamation and verbal injury actions, in a somewhat circuitous way, by amending paragraph 1 of the Part 2 to Schedule 2 of the 1986 Act, so that it read as follows:-

"Subject to section 14(1C) ......, civil legal aid shall not be available in proceedings which are wholly or partly concerned with defamation or verbal injury".

[4] Section 14 of the Legal Aid (Scotland) Act 1986 provides as follows (inter alia):-

"(1) Subject to section 15 of this Act, and to subsection (2) below, civil legal aid shall be available to a person if, on an application to the Board -

(a) the Board is satisfied he has a probabilis causa litigandi; and

(b) it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.

(1A) In the case of proceedings in such courts or tribunals as may be specified in regulations under this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) above and section 15 of this Act, such criteria as may be prescribed in those regulations are met.

.......

(1C) In the case of proceedings described in paragraph 1 of Part II of Schedule 2 to this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) and section 15 of this Act and subject to paragraph 2 of Part II of Schedule 2, such criteria as may be set out by the Scottish Ministers in directions given to the Board are met.

.......

(1E) Where the Scottish Ministers give a direction under subsection (1C) -

(a) the Board must comply with it

.......

(4) Where -

(a) the Board has refused an application for civil legal aid by a person who has applied for such aid for the purpose of raising an action against the Board, and

(b) the applicant has applied to the Board for a review of his application,

the Board shall unless they decide to grant the application forthwith, refer the application, together with all relevant precognitions, statements and other papers, including any observations they wish to make on the application, to the Sheriff of Lothian and Borders at Edinburgh,

(5) Subject to section 15 of this Act, and subsection (2) above, where the sheriff decides -

(a) that the applicant has a probablis causa litigandi; and

(b) that it is reasonable in the particular circumstances of the case that he should receive legal aid, he shall so inform the Board, and the Board shall make civil legal aid available to the applicant.

(6) A decision made by the Sheriff under subsection (5) above shall be final".

Section 15 is concerned with financial provisions.

[5] In terms of section 14(1)(c) the Scottish Ministers issued the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2007. Paragraph 3 provides:-

"(1) In making civil legal aid available to a person in proceedings which are wholly or partly concerned with defamation or verbal injury, the Board must be satisfied, in addition to the requirements of section 14(1) and 15 of the Act being met, that

(a) (i) there is significant wider public interest in the resolution of the case and funded representation will contribute to it; or

(ii) the case is of overwhelming importance to the person; and

(b) there is something exceptional about the person or the case such that without public funding for representation it would be practically impossible for the person to bring or defend the proceedings and the lack of public funding would lead to obvious unfairness in the proceedings.

(2) In determining whether for the purposes of paragraph 3(1)(b) there is something exceptional about the person or the case the Board must be satisfied that a degree of exceptionality is the same as, or is approximately the same as, the facts found in the case of Steel and Morris v United Kingdom".

The citation of this latter case is (2005) 43 ECHRR 22. In the interpretation section (2) of the Direction, the phrase "overwhelming importance to the person" is intended to mean "a case which has exceptional importance to the person in question, beyond the monetary value (if any) of the claim, as regards, for example, the life, liberty or physical safety of the person or his or her family, or a roof over their heads". The phrase "wider public interest" means "the potential of the proceedings to produce real benefits for individuals other than the client (other than the benefits to the public at large which normally flow from proceedings of the type in question)". This Direction was revoked and replaced by the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2008, which was in essence in exactly the same terms as the 2007 Direction, but made provision for cross border disputes.

[6] The Scottish Legal Aid Board refused legal aid to the petitioner in terms of their decision letter dated 27 February 2008 because they considered that it was unreasonable to grant legal aid in the circumstances, and that in the petitioner's case the conditions of the Directions had not been met. In addition the Board added that it was "not reasonable to make civil legal aid available in view of the absence of support for losses allegedly sustained by the applicant (the petitioner), in particular the absence of any medical report".

[7] In terms of section 14(4) of the 1968 Act the petitioner then appealed against the refusal of legal aid to the Sheriff Principal of Lothian and Borders at Edinburgh. The Sheriff Principal by his letter of 11 September 2008 refused the appeal. He concluded that the petitioner had not shown probabilis causa litigandi (in other words that the petitioner did not have a probable cause of action), firstly because there did not seem to him to be "anything irrational or unreasonable about the expression of view (by the Board) that there was an absence of support of losses allegedly sustained by (the petitioner), and for noting the absence of a satisfactory medical report". More importantly, the Sheriff Principal concluded that there was "more fundamental reasons" for rejecting the petitioner's appeal. He observed that the Board was obliged to apply the test set out in paragraph 3 of the 2007 Direction, and that this involved two separate and distinct stages. The petitioner required to identify a significant wider public interest in the resolution of the case to which funded representation would contribute, or show that it was of overwhelming importance to him. The only basis for claiming that there was a significant wider public interest was that guidance would be given to local authorities on the nature of the information which could be disclosed in similar circumstances. The Sheriff Principal doubted that that argument was sustainable in the present case. He also considered that while the matter was clearly of importance, its significance to the applicant could not be said to be overwhelming.

[8] Secondly, while noting that the terms of paragraph 3(b) were quite extraordinary, restricting legal aid, as it does, to a situation where the bringing of a claim would be "practically impossible" without it, the Sheriff Principal concluded that the test was an extremely high one, where the degree of exceptionality was to be of the order found in the case of Steel and Morris. He took into account that it would be difficult to envisage any type of defamation action which could be dealt with by an unrepresented party without considerable difficulty. However, he concluded that the present case came nowhere near the required standard. In respect of the process of applying for legal aid the Sheriff Principal's decision is final (section 14(6)).

[9] There is in my view no doubt that the Scottish Legal Aid Board were fully justified in refusing legal aid to the petitioner, in terms of the relevant legislation and the Directions, with which they were bound to comply. Nor is there any doubt that the decision of the Sheriff Principal, in dealing with the petitioner's appeal against the refusal of legal aid, cannot be criticised. However, this judicial review is not directly about these two decisions.

[10] The petitioner then complained to the Ombudsman. His complaint was essentially that the City of Edinburgh Council had accepted and kept on file information implying that he had been convicted and imprisoned for murder without checking its veracity. This information had been passed to a third party which resulted in his partner's fertility treatment being refused. The Ombudsman declined to uphold the petitioner's claim by a decision dated 28 November 2006.

[11] It is in these circumstances that the petitioner has raised the present action. He maintains specifically that he has exhausted all appeals available to him as a legal aid applicant. He therefore seeks various orders in this petition, first, a declarator that the 2007 Direction was ultra vires, irrational, contrary to the rights and freedoms set out in the Human Rights Act 1988, contrary to the duties set out in terms of section 57(2) of the Scotland Act 1998 and, accordingly, void; and in particular he alleges that there is no rational basis for making a Direction contrary to his human rights; secondly, a similar declarator in terms of the 2008 Direction; thirdly, he seeks reduction of paragraphs 2 and 3 of the 2008 Direction; and fourthly, he is asking for damages. In response, the Scottish Ministers have lodged defences refuting the petitioner's averments and tabling two pleas which are essentially preliminary in nature. It is said that the petition should be refused first because it is academic and can have no practical effect in the circumstances, and secondly because there is an alternative remedy available to the petitioner. It was decided at an earlier procedural hearing in this case that the present debate should proceed on the submissions in respect of these two preliminary pleas because of time constraints, leaving the other issues in the petition and answers to be heard, if necessary, on another date.

[12] In support of the first plea in law, counsel for the respondents submitted that the courts decide only live practical questions and have no concern with hypothetical, premature or academic issues. What is a live issue will turn on the individual circumstances of each particular case. Reference was made to McNaughton v McNaughton's Trustees 1953 SC 387 at 392 per LJC Thomson; and Regina (Rusbridger & another) v Attorney General [2004] 1 AC 357, paras.22, 23 and 24. The only exception to this rule is that the court may, in exceptional circumstances, have a discretion to consider an academic issue involving a public authority on a question of public law. There must however be a good reason in the public interest for doing so; for example a discrete point of statutory construction or when there is a large number of similar cases to be dealt with, or about to be raised (Napier v Scottish Ministers 2005 SC 307, para.[7]; Rusbridger para.19). Counsel for the respondents submitted therefore that there was no live practical issue in the present case. The petitioner, in order to get legal aid, had to satisfy each of three separate tests. First, the petitioner required to show the Legal Aid Board in terms of section 14(1) that he had probabilis causa litigandi, and that it was reasonable in the particular circumstances of the case for him to be granted legal aid. Secondly, he had to demonstrate that he qualified for legal aid under the financial rules in terms of section 15. Thirdly, he had to qualify under the Directions. Clearly, the petitioner had failed to satisfy the Board, both initially and in terms of the subsequent appeal to the Sheriff Principal, that he has satisfied the test under section 14(1), as well as failing to satisfy the test under the Directions. He failed to satisfy the Board, in terms of the Directions, that it was reasonable that he should get legal aid because he failed to provide adequate medical support for his claim. Accordingly, even if the Directions were removed, he would still not have been given assistance. It was not enough that the Directions may have an affect on other persons in the future (Marco's Leisure v West Lothian District Licensing Board 1994 SLT 129, cited in Swan v Secretary of State 1998 SC 479 at 485). Further, this was not the sort of exceptional case contemplated in Napier and Rusbridger. It was fact-sensitive; whether legal aid is to be granted in terms of the Directions must depend on a detailed consideration of the particular facts and circumstances (Steel and Morris and McLean v Buchanan 2002 SC (PC) 1). So because the case was fact-driven, this excluded the possibility that it could qualify for exceptional treatment. Nor is it said in the present case that there is a large number of other cases which would depend on the outcome of this one.

[13] The second submission by counsel for the respondents was that the supervisory jurisdiction of the Court invoked by judicial review was not available where an alternative remedy could be sought. Both the common law and the Rules of Court require that alternative remedies must be exhausted before this particular form of remedy becomes available. It does not matter if these alternative remedies are out of time, or have been tried and have failed (Falconer v South Ayrshire Council 2002 SLT 1033 at para.[19]; see also McKenzie v Scottish Ministers 2004 SLT 1236). Here there were other remedies available. The petitioner had the right to appeal to the Ombudsman, who had the power to grant compensation. This remedy had already been tried, and had failed. The petitioner also had the option of suing either Edinburgh City Council or the National Health Service Trust, or both, for damages, but he had not done so. Accordingly all remedies had not been exhausted, and there was no exceptional circumstances averred which might allow the petitioner to avoid this requirement to look for another source of relief. In these circumstances, the petition should be dismissed at this stage.

[14] In reply counsel for the petitioner argued, in respect of the respondents' first set of submissions, that there was a factual dispute in the present case, as could be seen from the petitioner's pleadings. It was accepted that the facts had to be considered in the context of the case (McNaughton v McNaughton's Trustees) but reference should also be made to Swan v Secretary of State, paras.4 and 5. The subject matter of the dispute was not spent; the Directions issued by Scottish Ministers in 2007 and 2008 will remain in force and will continue to prevent the petitioner from getting legal aid in the future. It was open to him to apply again; the refusal here was because there was insufficient support for his claim for damages. Moreover, the petitioner maintained that the order which he sought was not fact-sensitive; he was not seeking a remedy in damages or interdict, but an order against the Scottish Ministers on the ground that these Directions, with which the Scottish Legal Aid Board must comply, effectively withdrew the right to legal aid from those persons who wished to raise an action of defamation, a right which had been given in the statute. The terms of the Directions are such that there can be no limited class of person who can realistically be envisaged as qualifying for legal aid. By imposing such draconian limits on who might thus qualify, all applicants for assistance in defamation or verbal injury cases were affected. As the Sheriff Principal said in his decision letter, the requirements imposed upon persons such as the petitioner left them with an insurmountable obstacle. More specifically, in terms of section 14 of the 1986 Act (as now amended), counsel submitted that a person may get legal aid for defamation actions. It could be inferred that the Board's refusal letter indicated that the necessary test had been satisfied by the petitioner; all that was needed was a better medical certificate. Accordingly, this case should qualify under the Directions [see Steel and Morris v UK, para.64]. This defamation action could not be regarded as simple. Issues involving the provision of false information, data protection, and freedom of information were all complex, and litigants could not be expected to cope without assistance. In terms of the Direction of 2007, section 3(1)(a) and the interpretation section 2 of the 2007 Direction require a wider public interest to be demonstrated before legal aid can be granted, but an action of defamation cannot in normal circumstances realistically involve such a wider public interest and accordingly the Directions must be seen as irrational. Similarly, in terms of section 3(ii), the question of there being an issue of overwhelming importance to a person is hardly likely to arise in an action of defamation or verbal injury. All these considerations point to the irrationality of the Directions and thus suggests that they are ultra vires. In addition, regard had to be had to section 3(b), which described the degree of exceptionality which would be required; in terms of section 3(2) this is to be the kind that was found in Steel and Morris v UK. The reference to this case is not to be regarded as an issue of principle, but as an indicator of the degree of exceptionality to be examined against the facts of the case in question. In these circumstances the respondents have produced Directions which effectively excluded legal aid from defamation and verbal injury litigants.

[15] In developing his arguments on rationality, counsel for the petitioner submitted that even if there is not a live issue, the court can be asked to consider whether these guidelines are of any assistance. This was an issue which concerned a public authority, involving an issue of public law. The regulations in effect stop the petitioner from getting legal aid; the issue is therefore not academic (unlike the case of Rusbridger) but rather one which concerns a live statute. Accordingly the court should not consider that the issue here is fact-driven. These arguments would apply to the case of any applicant for legal aid and accordingly there is a discrete point of statutory construction, and this involves a detached consideration of the legislation and not of the facts of this case. The question here is whether any litigant could ever satisfy the Scottish Legal Aid Board in terms of the Directions that he or she can fall within the guidelines provided. In these circumstances there should therefore be a full hearing on this judicial review, because of the public interest. Reference was made to Regina v Secretary of State for the Home Department (ex parte Salem) 1999 1 AC 450 per Lord Steyn at p.457. Reference could also be made, in counsel's submission, to the case of Napier v The Scottish Ministers which was concerned not simply with the issues affecting the pursuer but a far wider group of potential claimants.

[16] In respect of the respondents' second argument, to the effect that the petitioner had not exhausted all his possible sources of remedy, the petitioner submitted that he had not lodged his complaint against the National Health Service Trust or the Council. His concern was with the decision by the Scottish Ministers to repeal the right of persons such as himself to get legal aid. The petitioner could have no other remedy until legal aid was granted. Despite the fact that the petitioner's ultimate goal was to get compensation, any other remedies that may be available to him would not help him get round his inability to qualify for legal aid (Walker v Strathclyde Regional Council (No.1) 1986 SLT 523; Falconer v West Lothian District Licensing Board). Here there was no alternative to the petitioner other than to reduce the Directions.

[17] It is a well established principle that the Courts will not entertain an academic or premature issue put before it. In the first place therefore it has to be decided whether in the circumstances of the present case there is a real issue to be tried. In my view there is not. In order to have the Directions of 2007 and 2008 set aside on the grounds that they are ultra vires, the petitioner would have to show - on the basis of his arguments in this case - that the Directions were so irrational, and involved such a fundamental violation of his human rights, that they should be reduced. In this he has not, in my view, succeeded, despite the persuasive submissions of his counsel. The respondent's position required him to argue that the terms of the Directions were such that there can be no class of litigant who could realistically be envisaged as qualifying for legal aid; that in effect the Directions effectively withdrew the right to legal aid granted by section 71 as amended. But two considerations suggest that this is wrong. First, it is clear that in the present case the petitioner would not have got legal aid in terms of his application even if the Directions had been removed. The Scottish Legal Aid Board's decision letter indicates that they considered that the application was unreasonable. That in itself is a ground for refusing legal aid, even although in the first instance no elaboration was given for that conclusion. That decision is not specifically challenged in this review. The Board also concluded that he had failed to qualify in terms of section 14. Further, the Board decided that there was insufficient support for his application in that there was no adequate medical evidence to support his claim for damages. Accordingly, the petitioner would not have been granted legal aid even if the Directions had been in place. The remedy he seeks is accordingly academic and should not be dealt with. Secondly, I am not persuaded that the petitioner has demonstrated that the Directions are so phrased that it is impossible for anyone or any class of litigant to obtain legal aid. It is true that the Directions specifically refer to the case of Steel and Morris as a guideline case and that that case was exceptional in its circumstances. All that means however is that the Scottish Ministers intended by these various legislative acts to make legal aid for defamation actions available only in truly exceptional cases. It also means, presumably, that the Scottish Ministers intend, as a matter of policy, that litigants in defamation actions are expected to proceed without the assistance of legal aid. That is a decision which Ministers are entitled to take. The standard that has to be reached in this respect, if legal aid is to be granted, as Sheriff Principal Bowen has indicated, may be almost insurmountable, but both from the content of the various legislative provisions and the manner in which they were introduced, it is clear that was nonetheless what the legislature intended. But that is not quite the same thing as saying that the granting of legal aid for such claims has become impossible. I cannot therefore hold that the Directions are irrational and for that reason ultra vires.

[18] Nor, in my view, is this a truly exceptional case, involving an important and discrete question of public law. There is not, as there was in the case of Napier, a number of other cases depending on the outcome. The argument here is about a set of Directions which intend to make the granting of legal aid difficult, but not impossible; it is entirely possible to imagine another case which involves the same kind of complex issues found in Steel and Morris v UK, although such a case may not be likely to happen with any great frequency. This is not therefore a point of statutory construction, or a matter of universal concern arising out of an issue of public law. Accordingly, I am not satisfied that there is a live issue in this case, or that there are exceptional circumstances justifying the Court's intervention. Nor do I think that the Directions are so irrational that they should be regarded as ultra vires. I therefore sustain the respondents' first plea in law.

[19] It is also clear that the respondents' submissions in support of their second plea in law were correct. It is well settled that the supervisory jurisdiction of the Court of Session can only be invoked after all other remedies, whether under statute or at common law, have been exhausted (Falconer v South Ayrshire Council per Lord Hamilton at para.[19]). The petitioner seemed to argue that it will depend on what immediate remedy he was attempting to achieve in order to apply this doctrine; in particular he suggested that the remedy he sought was to get legal aid to pursue an action of compensation based on the consequences of defamation. He had exhausted all available remedies in his attempt to get legal aid, and therefore there was no alternative remedy left available to him. On the other hand it was argued for the respondents that it was implicit in the petitioner's submissions that his claim was essentially one in which he sought compensation, and that in effect obtaining legal aid was merely one step in his journey to that end. I have concluded that the respondents' approach to this matter is to be preferred. The petitioner's pursuit of his complaints arising out of the allegation of defamation will not be satisfied by the grant of legal aid; what he wants is compensation. What the court has to look at in these circumstances is the essence or substance of the remedy which the petitioner seeks. It is in my view artificial to suggest that by pursuing to the full extent the process of applying for legal aid, the petitioner can maintain that he has exhausted all alternative remedies in his quest to obtain compensation. Clearly he has not. He has had the opportunity of approaching the Ombudsman, who has the power to award compensation. This attempt failed. The fact that the petitioner failed rather than succeeded before the Ombudsman is of no significance; the remedy of judicial review does not become available because the attempt at an alternative remedy has been unsuccessful. The petitioner might also have claimed damages against Edinburgh City Council or the National Health Service Trust. It could be said that such actions must necessarily be based, at least in part, on the petitioner's claim that he had been defamed, and that therefore he would not qualify for legal aid. But that would not absolve him from the consequences of failing to take an alternative available course. I am therefore not satisfied that he has exhausted all his possible remedies, and in particular, as I have indicated, his appeal to the Ombudsman means on any view that he can now not invoke the supervisory jurisdiction of this court. On this ground alone this petition for judicial review must fail.

[20] In all the circumstances, I consider that the respondents' first two pleas in law should be sustained and accordingly the action falls to be dismissed at this stage.