Citation Codes
Equivalent Citations
citation codes
Attorney(S)
- Edward Rowntree (instructed by Kerman & Co.) for the Claimants
- Michael Rimer for the Legal Aid Agency
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The All England Lawn Tennis Club (Championships) Ltd v. McKay (No. 2)
Smart Summary
Factual and Procedural Background
This opinion addresses the correct procedure for determining applications for legal aid by individuals facing High Court committal proceedings for contempt due to failure to comply with an order. The issue arose because of uncertainty over whether the Director of Legal Aid Casework or the court has the authority to grant legal aid in such cases. The court invited submissions from the Legal Aid Agency ('LAA') and reserved judgment on the matter.
Legal Issues Presented
- Whether individuals facing High Court committal proceedings for breach of an order are entitled to legal aid as of right.
- Who is the 'relevant authority' empowered to determine eligibility for legal aid in such proceedings: the Director of Legal Aid Casework or the court?
- Whether the decision in King's Lynn and West Norfolk Council v Bunning, which held that the court is the relevant authority, remains good law.
Arguments of the Parties
Legal Aid Agency's Arguments
- The Director of Legal Aid Casework is the relevant authority to determine eligibility for legal aid in High Court committal proceedings for breach of an order.
- Individuals facing such proceedings are entitled to legal aid without assessment of means or merits.
- There is an established procedure for applications to be made to the Director, processed expeditiously, usually within 48 hours.
- The decision in King's Lynn and West Norfolk Council v Bunning was wrongly decided and should be reconsidered.
Court's Position
- Agreed that legal aid is available as of right to persons facing High Court committal proceedings for breach of an order.
- Concluded that the Director, not the court, is the relevant authority to make the determination under the statutory scheme and regulations.
- Rejected the assumption in Bunning that if proceedings are criminal, the court must determine legal aid eligibility.
- Noted that the established procedure for applications to the Director resolves practical concerns previously raised.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| King's Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531 |
Held that the court is the relevant authority to determine legal aid eligibility in High Court committal proceedings for breach of an order. |
The court found this decision was wrongly decided and departed from it, concluding the Director is the relevant authority. |
| Hammerton v Hammerton [2007] 2 FLR 1133 |
Clarified that committal proceedings for contempt involve the determination of a criminal charge for Article 6(1) ECHR purposes. |
Used to confirm that such proceedings qualify as criminal proceedings for legal aid eligibility. |
| Chelmsford County Court v Ramet [2014] EWHC 56 (Fam) |
Discussed legal aid in contempt in the face of the court, affirming application of reg. 9(v) and Bunning's analysis. |
Noted but did not address the identity of the relevant authority; distinguished by the type of contempt involved. |
| Brown v Haringey London Borough Council [2015] EWCA Civ 483 |
Confirmed Bunning’s reasoning for High Court proceedings and addressed legal aid for contempt proceedings in the county court. |
Approved Bunning’s reasoning in part but did not decide the relevant authority for High Court proceedings; held Director is relevant authority for county court. |
| H v T [2018] EWHC 1310 (Fam) |
Considered representation orders and the role of the LAA and the court concerning legal aid in committal appeals. |
Did not decide the relevant authority issue but acknowledged the established procedure of the LAA and invited challenge to Bunning in an appropriate case. |
| O (Committal: Legal Representation) [2019] EWCA Civ 1721 |
Confirmed entitlement to legal representation and non-means-tested legal aid for respondents to committal proceedings. |
Referred to Bunning and Haringey but did not address the relevant authority issue. |
Court's Reasoning and Analysis
The court analysed the statutory scheme under LASPO and related regulations governing legal aid. It confirmed that committal proceedings for breach of an order in the High Court constitute criminal proceedings requiring legal aid as of right, without assessment of means or interests of justice. The court examined the relevant statutory provisions—particularly sections 16, 18, and 19 of LASPO—and the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013.
The court rejected the assumption in Bunning that once proceedings are classified as criminal, the court must be the relevant authority for legal aid determinations. Instead, it found that the statutory framework contemplates determinations by either the Director or the court, depending on the type of proceeding. The Determinations Regulations confer power on courts to make legal aid determinations only in specific proceedings listed in regulations 6 to 8. High Court committal proceedings for breach of an order do not fall within those categories.
Consequently, the court concluded that the Director of Legal Aid Casework is the relevant authority in such cases. The court acknowledged the practical concern in Bunning about the absence of an established procedure for legal aid applications but found that this has since been resolved by the LAA’s established, efficient process. The court emphasized that this interpretation aligns with the statutory scheme and avoids conflicts between regulations and primary legislation.
Holding and Implications
The court’s final decision is as follows:
DISPOSED OF
The court held that in High Court committal proceedings for breach of an order, the Director of Legal Aid Casework, not the court, is the 'relevant authority' responsible for determining eligibility for legal aid under section 16 of LASPO. The earlier decision in King's Lynn and West Norfolk Council v Bunning, which held the contrary, was wrongly decided and is overruled to that extent.
The practical implication is that applicants and legal service providers should apply for legal aid through the established procedure administered by the Director. This decision does not affect the availability of legal aid, which remains an entitlement as of right, but clarifies and corrects the procedural route for obtaining it. The court noted that the position differs in the Court of Appeal, where the court remains the relevant authority for legal aid determinations.
No new precedent beyond the clarification of the relevant authority is established by this decision.
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