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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bewry, R (on the application of) v Legal Services Commission [2001] EWCA Civ 731 (11 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/731.html Cite as: [2001] EWCA Civ 731

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE SCOTT BAKER)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE ROBERT WALKER: This is application by Mr Raymond Bewry, who has appeared in person. He has addressed me with both courtesy and skill, but in view of the nature of this application I should add that I accept that even an intelligent and experienced litigant in person may lack specialised skill in examining witnesses.
2. Mr Bewry is applying for permission to appeal an order of Scott Baker J made on 15th January 2001 in the Administrative Court refusing Mr Bewry's application for judicial review of a decision of the Legal Services Commission ("the Commission"). That decision was contained in or communicated by letters dated 24th November and 13th December 2000. It was a decision not to grant exceptional funding under section 6(8)(b) of the Access to Justice Act 1999. Mr Bewry had applied for exceptional funding, and his application had been supported by a number of letters from lawyers and others, in order that he should have professional representation at an Employment Tribunal hearing which was to begin on 11th January last.
3. The background to the matter is set out in Mr Bewry's perfected grounds of appeal, a document which has been prepared and presented with the utmost skill and care. So far as form is concerned that document would do credit to a top firm of city solicitors or a top set of barristers.
4. In 1992 Mr Bewry was appointed by Cumbria County Council ("Cumbria") as Health and Safety Officer for Cumbria's Social Services Department. This was a new post created following on the so-called Framework Directive EC 89/391.
5. In 1994 Mr Bewry became Safety Representative looking after the interests of white collar members of the Social Services Apex Union. Mr Bewry's vigorous performance of his duties brought him into contact, and indeed into confrontation, with senior Cumbria employees up to and including the chief executive and also elected members of the county council. In his own words Mr Bewry risked and incurred disciplinary action by making comments to the press. In his own words he was admired for his zeal, but it made him very unpopular in some quarters.
6. He claims, and I see no reason to doubt it, that he achieved remarkable reductions in notifiable accidents in the areas for which he was responsible, especially in manual handling (which is a matter of great importance for those caring for the elderly and disabled). Then to his dismay his section, then consisting of five staff, was dismantled. On 10th March 1995 he lodged a formal grievance. On 26th May 1995 he received a final written warning for communicating (as a Union safety representative) with a local journalist. On 18th July 1995 Cumbria's Personal Cases Panel upheld his grievance relating to a failure to consult but it seems that no action was taken. On 23rd October 1995 Mr Bewry made what was to be the first of several applications to the Employment Tribunal.
7. On 17th June 1996 Mr Bewry was suspended from work for alleged financial irregularities. On 15th August 1996 he was arrested but released without being charged. At this stage Mr Bewry was in touch with the legal officer of the GMB Union with a view to obtaining legal representation. On 11th September 1996 Mr Stefan Cross of Thompsons, the union solicitors, recommended that he should be assisted. Thompsons prepared a summary of Mr Bewry's complaints and on 15th October 1996 requested an adjournment of a hearing then fixed for the week of 25th November. Subsequently, however, the union decided not to continue to assist Mr Bewry. The court has no clear evidence as to the reasons for that.
8. In October 1996 Mr Bewry had to go abroad urgently to Jamaica since, most regrettably, his brother had been shot there. Mr Bewry was dismissed in his absence. He made a further complaint to the Employment Tribunal complaining of unfair dismissal.
9. There was a preliminary hearing on 11th December 1996 at which Mr Bewry appeared in person and Cumbria was represented by counsel. Mr Bewry's application for interim relief was then heard over a total of no less than 22 days between January and August 1997. Mr Bewry represented himself. His application for interim relief was dismissed, and Mr Bewry was ordered to pay the costs, subsequently assessed at no less than £33,000. The making of such an order for costs is very exceptional. The Employment Appeal Tribunal refused to order production of the tribunal chairman's notes and refused permission to appeal; so on 2nd November 1998, did this court. Mr Bewry tells me that a complaint arising out of that litigation is now before the European Court of Human Rights at Strasbourg.
10. In the meantime a police investigation had been continuing. In November 1997 Mr Bewry was charged, and on 26th January 1999 he was convicted on a single charge of conspiring to defraud Cumbria. He was sentenced to nine months imprisonment. That conviction was quashed by the Criminal Division of this court on 20th July 1999.
11. In November 1999 Cumbria started bankruptcy proceedings in respect of the unpaid costs of the interim relief hearing. Mr Bewry's substantive claims in the Employment Tribunal remained unresolved. On 28th March 2000 the tribunal directed a hearing with a duration of 40 days of the substantive claims to begin on 11th January 2001. In May 2000 the bankruptcy proceedings were adjourned to await the outcome of the tribunal hearing.
12. In August 2000 Mr Bewry wrote to the Commission asking for funding for representation at the tribunal hearing. After a refusal this was followed on 2nd November 2000 by a solicitor's letter requesting exceptional funding under section 6(8)(b) of the Access to Justice Act 1999.
13. I come to the core of the proposed appeal.
14. Section 6 deals with services which may be funded by the Commission. In general the Commission may not fund any of the services described in schedule 2 to the Act, which include advocacy in an Employment Tribunal and in other tribunals of relatively low status. Subsection 8 provides:

"The Lord Chancellor

(a) may by direction require the Commission to fund the provision of any of the services specified in Schedule 2 in circumstances specified in the direction, and

(b) may authorise the Commission to fund the provision of any of those services in specified circumstances or, if the Commission requests him to do so, in an individual case."

15. Any general authorisation under section 6(8)(b) is to be published.
16. By letters of 24th November and 13th December 2000 the Commission declined to grant exceptional funding.
17. On 26th December 2000 Mr Bewry lodged his application for judicial review. It was refused on the papers by Ouseley J on 9th January. By then it was only two days before the Employment Tribunal hearing was to begin. On 11th January the tribunal declined to adjourn the hearing, although Mr Bewry tells me that in fact it began by considering preliminary matters only. On 15th January Scott Baker J refused an adjournment and refused the renewed application.
18. It appears from an undated news story in the appeal bundle that Mr Bewry left the Employment Tribunal hearing, saying that he could not cope any more. Mr Bewry has confirmed that that did indeed occur and that he left at an early stage. The tribunal hearing apparently continued for some two to three weeks after his departure, and judgment has now been reserved for more than three months.
19. The Lord Chancellor had given general guidance as to his policy on exceptional funding. I will read out most of the passage from the official guidance which was cited by the judge:

"Historically, most tribunals have been excluded from legal aid on the grounds that their procedures are intended to be simple enough to allow people to represent themselves. The 1999 Act excludes advocacy before the Lands Tribunal and Commons Commissioners for the first time because they do not have sufficient priority to justify public funding.

'I would be prepared to consider applications from the Commission, in exceptional individual cases, to authorise funding for advocacy before a tribunal, inquest or public inquiry. To justify funding...

(a) the client would have to be financially eligible for funded representation.

(b) the case would have to pass all the relevant Criteria in the General Funding Code; and either involve a significant wider public interest or have overwhelming importance (as defined above) to the client (or clients) seeking funding; and

(c) there could have to be convincing evidence that, given the procedures and other arrangements in the court or tribunal concerned, legal representation was the only adequate way of establishing the facts and presenting the case; and that no alternative means of funding that representation was available...'"

20. The guidance continued:

"... so that taking these factors together, and having regard to our obligations under the European Convention on Human Rights, it was essential to provide public funding for representation in order to serve the interests of justice."

21. "Overwhelming importance" means in this context something which affects the life, liberty or physical safety of the applicant or his immediate family or the roof over their heads.
22. In the letter of 24th November to Mr Bewry's solicitor, a legal advisor to the Legal Services Commission, summarised this policy, and then he wrote:

"I regret that, taking into account that guidance, this does not appear to be an appropriate case in which to request funding.

The guidance refers to cases with an overwhelming importance to the client affecting the life, liberty or physical safety of his immediate family or the roof other their heads. Although I can sympathise with your client's view that his employment is very important to him, it is not a matter that is of such importance that it affects his life, his liberty, physical safety or the roof over his head. Neither can I see any significant wider public interest in this case. The case clearly falls outside the guidance.

I am also not persuaded that this case passes all the relevant criteria in the General Funding Code. I cannot include on the information provided that your client is likely to succeed. The fact that the interim applications were dismissed with substantial costs is not a good omen. Are you able to provide an opinion or counsel's opinion on the merits? In principle this could be obtained under Legal Help. There is no clear indication of the nature of the other side side's case.

Further I am not persuaded that your client is in need of formal legal representation to pursue his case effectively. I accept that this is an unusually complex hearing but your client appears to have been able to act in person to date and no doubt the tribunal would assist him to do so at the hearing."

23. He went on to address Human Rights issues, preferring to several reported cases, and informed Mr Bewry of his right to a review by the policy and legal director at the Commission.
24. On 4th December Mr Bewry wrote seeking reconsideration. He drew attention to his imprisonment (until the time when his conviction was quashed) and to the bankruptcy proceedings which had been adjourned pending the tribunal hearing. He drew attention to the union's solicitor's view that his applications raised extremely important issues, and to Cumbria being a publicly-funded body which had spent many thousands of pounds engaging counsel, despite its resources of in-house lawyers.
25. The Policy and Legal Director replied by letter of 13th December 2000. He responded to each of the six numbered points made by Mr Bewry. In particular, he readily accepted that the case was one of great importance to Mr Bewry, but said that it did not meet the very stringent requirements in the Lord Chancellor's guidance. He also said that although some of the community law points were complex (and might have been outside the tribunal's jurisdiction) the case on unfair dismissal was in relatively brief compass, turning largely on issues of fact. In short he agreed with the decision in the earlier letter.
26. Scott Baker J summarised all these matters in his judgment on the renewed judicial review application and took the view that the Commission meticulously followed the Lord Chancellor's guidance. He was satisfied that there was no breach of Article 6 of the European Convention of Human Rights. He said at the end of his judgment:

"I turn finally to the two decision letters. The first was written by Mr Stutt and is dated 24th November of last year. It seems to me, without reading out every word of that letter, that Mr Stutt had very clearly in mind the appropriate provisions in the guidance and the manner in which section 6(8)(b) applications for exceptional individual cases were to be dealt with. It is also relevant that he had in mind a number of European cases on Article 6. Then came the final decision by Mr Hamilton in his letter of 13th December, when he dealt with a number of points that had been made by Mr Bewry in his better of 4th December. Again I can find no ground for criticising the way in which Mr Hamilton dealt with the various matters raised by Mr Bewry, and again it seems to me that he had the Lord Chancellor's guidance very clearly in mind. He concluded at the end of paragraph 5 by saying that he was not persuaded that Mr Bewry required legal representation in order to deal with the issues in the case.

In those circumstances, this renewed application for permission to apply for judicial review is refused because there is, in my judgment, no arguable case.

I would not like, however, to leave this case without saying that Mr Bewry said everything that could possibly be said on his own behalf. He argued his points with great clarity and force and in my judgment was well able to understand the issues before the court. I am sure he will give a very good account of himself in the proceedings before the Employment Tribunal."

27. I have already referred to the subsequent course of events before the tribunal. Mr Bewry tells me that he has by no means exhausted all possible lines of redress in relation to that hearing.
28. Mr Bewry relies on seven grounds of appeal set out in his perfected notice of appeal. The first is the judge's refusal of an adjournment for five days to enable him to obtain representation through public funding. That was a case management decision for the judge. Airey v Ireland (1979) 2 EHRR 305 does not establish any general Article 6 right to funded representation in all civil cases. It is only in exceptional cases where the absence of legal representation would in practice amount to denying a claimant any access to justice. In that case the circumstances were that a wife from a humble background in the Republic of Ireland was trying to obtain judicial separation from her abusive husband, when judicial separation in Ireland was a rare procedure available only in the High Court and invariably conducted by counsel.
29. Mr Bewry's second ground of appeal is that the judge did not consider relevant evidence, in particular the letters from lawyers and others supporting the application for exceptional funding, which did indeed provide strong support for Mr Bewry's application. The judge did not refer to the letters in his judgment but I see no reason to think that he did not carefully read all the papers put before him. The judge is not under a duty to refer to every single piece of evidence providing that he gives adequate reasons for his decision. Moreover, it was not for the judge to decide whether there should be an application for exceptional funding: his task was to see whether the Commission's decision was open to a judicial review which is of course a materially different issue.
30. The third ground of appeal is that the Lord Chancellor's guidance is incompatible with Article 6. I do not think that is an arguable point. The guidance is clearly intended to be compatible with Article 6, which is implicitly referred to at the end of the guidance, and in my view, it plainly is compatible. The contrary view seems to me to involve a misunderstanding of Airey v Ireland and also of Bombo Beheer B V v The Netherlands (1994) 18 EHRR 213. In the latter case it was said that the claimant had been denied proper access to justice since under the Netherlands Law of Evidence he was not permitted to give any oral evidence as to an alleged oral agreement made with only two individuals present, whereas the other individual present, a bank manager, was allowed to give evidence despite being an employee of the opponent company. The European Commission of Human Rights when it existed, and the European Court of Human Rights have on several occasions dismissed complaints of Article 6 violations based on the absence of legal aid in the United Kingdom where there has been no arbitrary refusal of legal aid.
31. The fourth ground of appeal is that the Commission failed to give proper consideration to the application for exceptional funding, especially as to the reference in the guidance to a "significant wider public interest". I well understand Mr Bewry's strong feelings about his health and safety work and the way in which it was insufficiently valued and indeed obstructed, as he sees it. But I do not consider that the Commission which had to apply the strict test set out in the guidance made any error of law in applying that test.
32. The fifth ground of appeal is that the judge was influenced by false or misleading factors. This point is concentrated on the fact that Mr Bewry's union did not in the end provide representation for him at the interim relief hearing. Mr Bewry says that its support was withdrawn for what he calls "unrelated matters". Whatever the reasons for the withdrawal of support I think that the Commission was entitled to give some weight to the withdrawal of union support especially in relation to the "significant wider public interest" argument. I see no indication that the Commission attached excessive importance to that point.
33. The sixth and seventh grounds of appeal do not really add to the others. The sixth is repetitive. As to the seventh the suggestion that the Commission's letter of 24th November 2000 shows apparent bias is unarguable.
34. I have gone into these matters in considerable detail because Mr Bewry has very strong feelings on the matter, and also because of his admirable presentation of his case. However, having done so, I am driven to the conclusion that the judge's dismissal of the application was inevitable. It is not necessary to consider the question whether judicial review would in any event have been pointless since the Employment Tribunal hearing has now already taken place; that Mr Bewry tells me is a point raised by his own counsel when he did belatedly obtain funding for this application. But in the event his own counsel thought that it should not proceed.
35. However disappointed Mr Bewry is by the Commission's decision it seems to me that he has no prospect of establishing that it was unlawful.
36. I must therefore dismiss this application.
(Application dismissed; no order for costs).