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Legal Aid Agency criticised for ‘muddled’ decision to apply statutory charge to ward’s damages

No connection between legally-aided wardship proceedings and claim for damages

Mr Justice Keehan has criticised the Legal Aid Agency's decision to seek to apply the statutory charge to an award of damages to P, a 17-year old ward of court, 'as a result of the considerable emotional distress and harm to his mental well being'. He said that it would be 'extremely regrettable' if P were denied the benefit of the damages.

He concluded in P v A Local Authority [2016] EWHC 2779 (Fam) that 'however erroneous or muddled the LAA's decision making was on this issue, in my view, … the statutory charge is not and cannot be applicable to P's award of damages'.

P, a 17 year old, was born female but in September 2014 he told his adoptive parents he wanted to change his identity to be male. His decision caused the relationship with his adoptive parents to break down and P moved into section 20 accommodation provided by the local authority. P did not want his adoptive parents to be involved in his life or to receive any information about him whatsoever. The local authority was concerned with the extent to which it was obliged to adhere to its statutory obligations to consult with and give information to P's parents. Wardship proceedings were therefore commenced and Keehan J granted P declaratory relief that the local authority was absolved from all obligations to inform P's parents of his progress and well-being, and was ordered not to share various information with the parents (see [2016] EWHC 2600 (Fam)). No order as to costs was awarded. P was legally aided.

Subsequently, an employee of the local authority disclosed personal information about P, including his forename and transgender status, to friends of P's parents. The impact of the wrongful disclosure on P was immediate and dramatic. His mental health was severely compromised and he made a number of suicide attempts.

P sought to bring a Human Rights Act claim against the local authority for breach of Article 8 rights, seeking both a declaration and financial redress. The local authority admitted liability in response to a letter before claim and agreed to pay P damages in the sum of £4,750.

The LAA then contended that it was entitled to claw back the entire award on account of the costs incurred by P's legal team in the wardship proceedings. In light of this contention, which would have left P with nothing, Keehan J invited the Lord Chancellor and LAA to waive the statutory charge and, if they were unwilling to do so, to attend a hearing to make submissions.

The LAA was unwilling to waive the statutory charge. In submissions, the LAA relied on the fact that the Lord Chancellor has authority to waive the statutory charge, in whole or in part, only where she considers it equitable to do so and two conditions are met, namely, that the proceedings had a significant wider public interest and there might be other claimants who might benefit from the proceedings. It also relied on the decision of Mostyn J in R (Faulkner) v. Director of Legal Aid Casework [2016] EWHC 717 which held that  damages awarded for breach of an applicant's human rights by an organ of the state are not ringfenced or protected from the clawback of the statutory charge.

The LAA's position was that at the time when the scope for the existing certificate was extended to cover an application for a declaration for breach of an injunction, funding to bring a claim for HRA breaches was refused, and the conditions for waiver were not met. The position was therefore that P did not have legal aid funding to bring a claim for damages, and that should he recover damages within the existing wardship proceedings the statutory charge must attach as a matter of law.

Keehan J observed that the LAA had therefore appeared to have drawn a distinction between the claim for a declaration and a HRA claim for damages. Funding was granted for the former but not the latter. The LAA contended that this did not matter as, even if P's damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in "proceedings in connection with which the [civil legal] services were provided" and the HRA claim could not be said to be wholly unconnected to the subject matter of the wardship proceedings.

Keehan J disagreed. He noted that damages sought were not in fact related to a breach of an injunction made in the wardship proceedings. The LAA had misunderstood the earlier order.  He therefore concluded that, when considering the true factual matrix, there was no legal or factual connection between the wardship proceedings and P's HRA claim. The mere fact that Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160 advises that HRA claims may or should be made in existing proceedings, did not require the court to conclude that P must only make a HRA claim in the ongoing wardship proceedings. No claim form had in fact been issued and the quantum of damages had been settled. Keehan J therefore invited P's solicitor to issue a freestanding Part 8 claim for damages, within which he would make the agreed award of damages to P on the papers. Consequently, the statutory charge was entirely avoided.

For the judgment and summary by Eirwen Pierrot of Field Court Chambers, from which this item is derived, please click here.