Family Law

See also David Burrows' article, Lord Chancellor’s Guidance on Exceptional Case Funding, published 15 June 2015.

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Exceptional case determination: Convention breach

R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 affects all applicants for legal aid for any form of civil proceedings, with family proceedings very much included. It was a very careful judgment of the full court (Lord Dyson MR, Richards and Sullivan LJJ). The issue takes an applicant (or his/her adviser) immediately into the murky ‘quasi-legislation jungle’ (per Wade and Forsyth, Administrative Law (11th edn, 2014), at p 732) of statutory guidance. And it reminds the lawyer that every piece of delegated and – as here – semi-delegated legislation must be tested for lawfulness against its primary statutory source.

In Gudanaviciene that statutory source is Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) s 10, which is the get-out-of-gaol-free card for any civil proceedings litigant who can claim that s 10(3) justifies an ‘exceptional case determination’ (ECD), namely a determination by the Legal Aid Agency (LAA) as follows:


Thus s 10(3) explains when an ECD should be made; and that it becomes exceptional not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As Gudanaviciene says bluntly: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. And of s 10(3)(a) the court went on:


If the ‘Director’ – the LAA decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

LAA Guidance

In any decision-making, the LAA case-worker must ‘have regard to guidance given by the Lord Chancellor about the carrying out of those functions’ (LASPO, s 4(2)). The Lord Chancellor has issued guidance to LAA decision-makers in relation to s 10, namely Exceptional Funding Guidance (Non-Inquests) (the Guidance). It is the way case-worker approached that guidance which had enabled Collins J below ( Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin)) to find it unlawful and to direct, as a result, that four legal aid applications should have been granted, and that two should be reconsidered.

But what if the Guidance says something different from the statute? This is where anyone – applicant, lawyer, decision-maker – concerned with the decision made in reliance on the Guidance to check the original statutory power. Don’t worry about the small print, is the message. Read the big print. Go back to the statutory source of the decision-making power.

Gudanaviciene quotes extensively from the Guidance (at paras [11] to [23]), and states the general issues on appeal (as distinct from immigration issues with which the specific appeals were primarily concerned) as: (1) how properly LASPO, s 10(3) should be interpreted; and (2) whether the Guidance is compatible with European Convention 1950 Art 6 and EU Charter of Fundamental Rights Art 47 (the differences between Arts 6 and 47 for purposes of the case were not distinguishable: para [58] and [59]).

‘Obvious unfairness’

The court’s conclusion on (1) is as set out concerning s 10(3) above; but what of the critical issue of whether the Guidance properly guided applicants and decision-makers when it came to compatibility with Art 6? This said the Court was a matter of attention to