March 18, 2024

AS -v- The Lord Chancellor and Secretary of State for Justice (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Claim number: AC-2023-LON-001290

In the High Court of Justice
King’s Bench Division
Administrative Court

18 March 2024

Before:

Mr Tim Smith sitting as a Deputy High Court Judge

Between:

The King on the application of
AS

-v-

The Lord Chancellor and Secretary of State for Justice

and

The Director of Legal Aid Casework
(interested party)

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant (including her Reply), the Acknowledgement of Service filed by the Defendant, and correspondence sent on behalf of the Interested Party

ORDER by Mr Tim Smith sitting as a Deputy High Court Judge

1. The Claimant is granted anonymity and shall be referred to in these proceedings as “AS”. Pursuant to CPR39.2 there shall be no publication of the name or address of the Claimant or any particulars of the case likely to lead to the identification of the Claimant without the leave of the court.

2. Pursuant to CPR5.4C and 5.4D a person who is not a party to the proceedings may not obtain a copy of the statement of case, judgment or order from the court records unless the statement of case, judgment or order has been anonymised in accordance with the direction in paragraph (1) above.

3. The Court file shall be clearly noted with the words “An anonymity order was made in this case on 15th March 2024 and any application by a non-party to inspect or obtain a copy document from this file must be dealt with in accordance with the terms of that order”.

4. Any person has liberty on 3 days’ written notice to the parties to apply to vary or discharge the anonymity order set out above.

5. The Claimant has permission to discontinue her claim brought originally against the Interested Party as a defendant in these proceedings, and to rely on her amended claim form dated 21st July 2023 removing the Interested Party as a defendant and adding him instead as an interested party. There shall be no order as to costs between the Claimant and the Interested Party in the claim and each bear their own costs. This shall not prevent the Claimant and the Defendant from seeking an order as to costs against each other.

6. The Claimant has permission to substitute for her original Statement of Facts and Grounds the Amended Statement of Facts and Grounds dated 21st July 2023.

7. The Claimant has permission to rely on her Reply to the Defendant’s Acknowledgement of Service dated 18th September 2023.

8. The application for permission to apply for judicial review is refused.

9. The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of £5,921.70.

10. Paragraph 9 above is a final costs order unless within 14 days of the date of this Order the Claimant files with the Court and serves on the Defendant a notice of objection setting out the reasons why he should not be required to pay costs (either as required by the costs order, or at all). If the Claimant files and serves notice of objection, the Defendant may, within 14 days of the date it is served, file and serve submissions in response. The Claimant may, within 7 days of the date on which the Defendant’s response is served, file and serve submissions in reply.

11. The directions at paragraph 10 apply whether or not the Claimant seeks reconsideration of the decision to refuse permission to apply for judicial review.
(a) If an application for reconsideration is made, the Judge who hears that application will consider the written representations filed pursuant to paragraph 10 above together with such further oral submissions as may be permitted, and decide what costs order if any, should be made.
(b) If no application for reconsideration is made or if an application is made but withdrawn, the written representations filed pursuant to paragraph 3 above will be referred to a Judge and what order for costs if any, should be made will be decided without further hearing.

Reasons

1. The background facts underlying this claim are highly sensitive in nature and it is appropriate, having regard in particular to CPR39.2, therefore to protect the Claimant’s identity by anonymity – hence my order at paragraph (1) above. The subsidiary orders in paragraphs (2) and (3) flow naturally from paragraph (1). The Defendant does not resist the claim for anonymity.

2. The parties have accepted in correspondence that the parties to the claim should be amended so as to remove what is now the Interested Party as a defendant. The correspondence confirms the agreement as to costs recorded in paragraph (5) above.

3. The claim was filed initially on a protective basis. The Claimant’s amended claim form and Statement of Facts and Grounds update matters since the claim was issued. The Defendant does not resist the amendments and indeed has drafted his Acknowledgement of Service so as to respond to the amended grounds. There is therefore no prejudice from the proposed amendments to the claim and I am content to allow them.

4. As regards the Reply, this is helpful to the court in clarifying the Claimant’s case having regard to the grounds on which it is defended in the SGR and – again – the Defendant does not resist the Claimant’s reliance upon a Reply.

5. Turning to the substance of the claim I do not consider any of the grounds to be arguable. In particular:
a) Grounds 1a and 1b – indirect discrimination: primarily any differentiation in eligibility is intended to be on the basis of financial means, but I accept that there could be indirect discrimination on the basis of age by reason of the treatment of income and the differing benefits available to those of pensionable age. I am more persuaded by the Defendant’s argument based on proportionality than I am on the absence of disadvantage.
The identification of ‘disadvantage’ needs to be judged holistically. The Defendant’s SGR demonstrates how in some circumstances those of pensionable age are actually at an advantage compared with those who are not. This, as it seems to me, fairly reflects the likely differing circumstances between those of working age and of pensionable age related to income and capital. Faced with this likely difference the Regulations adopt a reasonable and proportionate approach to assessing financial means. In some cases older applicants may be advantaged by the criteria, in other cases younger applicants may be advantaged. An example of the former is the application of the “pensioners disregard”. The identification of ‘passporting benefits’ – which in effect is intended to expedite the claims of those whose financial means will already have been assessed for eligibility for the benefits awarded – is also a pragmatic and proportionate approach by the Defendant to administering the legal aid system.
In substance these arguments apply to both Grounds 1a and 1b.
In relation to Ground 1b I am sceptical as to whether Article 14 could attach to each of Articles 3, 6, 8 and Article 1 of the First Protocol but I accept that it will attach to at least one of these.
b) Ground 2 – breach of the public sector equality duty: the complaint of the Claimant in its Reply (that it is unattractive for the Defendant to rely both on an argument that there is no disadvantage and at the same time that the disadvantage has been considered by the Defendant) is fair comment. However I am persuaded by the latter argument. It seems to me that the evidence referred to by the Defendant in its SGR at §73 can fairly be characterised as a consideration of the likely disadvantages. It is not arguable that this consideration can be dismissed as lightly as the Claimant does in her Reply.

6. I am satisfied that the Defendant’s costs are reasonable in the circumstances.