The Court of Appeal has reversed the High Court’s ruling that the exceptional case funding (ECF) scheme was unlawful.
The Public Law Project will appeal the decision in Director of Legal Aid Casework and another v IS  EWCA Civ 464, in which Lord Justice Laws ruled that the scheme ‘is not inherently or systematically unfair’.
Laws LJ said he recognised that the ‘complexity’ of the application form meant that claimants were ‘heavily dependent’ on lawyers to complete them, but said the evidence does not justify the conclusion that the scheme is ‘outside the range of lawful choices open to the Lord Chancellor’.
He noted ‘troubling’ difficulties with it and said: ‘No doubt the LAA [Legal Aid Agency] and the Lord Chancellor will be astute to look for improvements.’
Dissenting, Lord Justice Briggs found the scheme was ‘unfair’ and ‘unlawful’ due to ‘systematic and inherent’ defects.
In particular, he noted that the application form ‘is addressed to, and plainly designed only to be completed by, lawyers’ and that there is ‘inadequate’ guidance for litigants in person.
Briggs noted that the scheme provides no funding for the ‘substantial time and effort’ required for a lawyer to complete an application, and the 13% success rate makes it uneconomic for lawyers to do it.
‘There are therefore bound to be many potential applicants for ECF whose circumstances would qualify them to receive it, but who are disabled from doing so,’ he said.
The Court of Appeal’s ruling overturned last year’s decision of the High Court that the scheme was unlawful because it was ‘far too complex’and set the bar too high for claimants to meet the merits test.
Welcoming the ruling, a Ministry of Justice spokesman said it will ‘consider urgently what steps to take in response to the court’s findings’.