Law Report: Same tests for legal aid and leave: Regina v Legal Aid Board, ex parte Hughes - Court of Appeal (Lord Donaldson of Lymington, Master of the Rolls, Lord Justice Staughton and Lord Justice Nolan)

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The 'prima facie arguable case' test applied by a single High Court judge in granting or refusing leave to apply for judicial review, and the 'legal merits' test applied by the Legal Aid Board in granting or refusing legal aid for such an application, were essentially the same.

In either case, a final decision should not be made if the information available was insufficient but there was a prospect of obtaining further information.

The Court of Appeal allowed an appeal by Gina Marie Hughes against the refusal of Mr Justice Kennedy to quash a decision of the board, refusing her legal aid to seek judicial review of a decision of Oldham Metropolitan Borough Council that she had become intentionally homeless.

George Warr (Oldham Law Centre) for the applicant; Charles Utley (Collyer-Bristow) for the board.

LORD DONALDSON MR said that after an initial refusal of legal aid by the board's deputy area director, Miss Hughes made a written application to a single High Court judge for leave to apply for judicial review of the council's decision.

Mr Justice Popplewell granted leave. She then appealed to the board's area appeal committee against the deputy area director's refusal of legal aid.

Such an appeal was by way of a reconsideration. The material before the committee was the same as before, but it also knew Mr Justice Popplewell had granted leave.

The committee nevertheless refused legal aid. Applying the 'legal merits' test under section 15(2) of the Legal Aid Act 1988, it held that the applicant's prospects of success were too small.

Mr Justice Kennedy refused to interfere with that decision, on the basis that the tests to be applied by a single judge and by the board were not the same, and in any event the board had to form its own judgment.

His Lordship accepted that it was for the committee to make up its own mind, but not that the test it had to apply was essentially any different from that applied by the judge.

On an ex parte application, the judge should only grant leave if, prima facie, there was already an arguable case for granting the relief sought. Equally, it was only when prima facie there was clearly no arguable case that leave should be refused ex parte.

The judge was asking himself whether an applicant's case was such that he had reasonable grounds for being given leave to bring proceedings which would inevitably involve the respondent in costs and administrative uncertainty.

The committee was asking itself whether an applicant had reasonable grounds for being granted representation under the Legal Aid Scheme which would probably, if not inevitably, involve some cost to the public purse.

In form they were different questions but in substance they were not. That the committee could take a different view from the judge was not in doubt, but it would rarely do so.

In the present case, both Mr Justice Popplewell and the committee had based their decisions on inadequate information.

The judge should have adjourned the application for an inter partes hearing to get more information from the council. The committee should have considered granting limited legal aid for this purpose.