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R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord Chancellor, [2014] EWCA Civ 1622

The claimants were successful in challenging refusals for civil legal aid (exceptional case funding – ‘ECF’). This had been refused in response to “Guidance” published by the Lord Chancellor under the new Legal Aid, Sentencing and Punishment of Offenders Act 2012 funding regime. The Court of Appeal held that the Guidance was incompatible with Article 6(1) of the ECHR (and also Art 47 of the EU Charter of Fundamental Rights.) The case was very notable for the court’s strong criticism of the very restrictive and misleading interpretation of ECtHR and domestic case law applied in the Lord Chancellor’s Guidance and enforced by the Director of Legal Aid Casework. Lord Dyson MR said that the “critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness”. This will depend on a number of circumstances, notably the difficulty of the legal issues at stake, the capability of the litigant in person, and the volume of evidence. Clearly the court felt that under the new regime the balance had been tilted considerably too far against such litigants.