High Court of Justice in Northern Ireland Queen's Bench Division Decisions

THE APPLICATION

GROUNDS OF THE APPLICATION

(1) The decision of the LC to authorise funding was unlawful in so far as it related to legal costs already incurred between 1^st November 2005 and 17^th January 2006 ("the retrospective claim"). The applicants submit that Article 10A(2)(b) of the 2005 Order does not permit such payments prior to the date of authorisation, that the LC is not empowered to direct the legal aid payments which will be made available or the terms on which the payment will be made and that it constitutes a breach of Article 46(2) of the Access to Justice (NI) Order 2003 as it amounts to a direction in an individual case.

(2) The decision to provide exceptional funding to the plaintiffs was predetermined and made in circumstances where the LC had unlawfully fettered his discretion.

(3) The decision of the LC was vitiated by actual or alternatively apparent bias.

(4) The applicants had a legitimate expectation that there would be consultation prior to the introduction of legislation conferring a power to fund exceptional cases not excluded from the ambit of the 1981 Order. The failure to occasion either general or targeted consultation, whilst not vitiating the 2005 legislation, was nonetheless indicative of a pattern of procedural impropriety and general unfairness in the decision making process. The unfairness was fuelled by the failure to take into account a number of relevant matters which were ignored.

(5) There was a failure to observe the duty of candour on the part of the LC in the course of the process.

(6) The LC acted in a Wednesbury unreasonable fashion, failing to take account of relevant factors when deciding to grant authorisation of payments under Article 10A(2)(b) of the 1981 Order.

(7) The decision of the Commission dated 10^th January 2006 ("the second decision") to request exceptional authorisation from the LC to part fund the legal costs of the plaintiffs, was challenged on the following grounds:-

(a) There was a similar lack of candour and misrepresentation by the Commission in the second decision making process.

(b) The second decision was unreasonable, ignoring the terms of Article 7(6) of the 2003 Order and the principle of fair remuneration.

(c) There was a lack of candour on the part of the Commission in its representations to the court .

THE STATUTORY CONTEXT

The relevant section in this matter is 76 which reads as follows:

"76. Exceptional legal aid

After Article 10 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 … insert –

`10A Exceptional legal aid

The Lord Chancellor may by direction require that legal aid is to be available in connection with excluded proceedings –

(a) in circumstances specified in the direction; or

(b) if the Legal Aid Committee requests him to do so, in an individual case so specified".

This Act was enacted but not brought into force.

The relevant Articles of this Order are as follows:

"7.-(6) In considering any question as to the remuneration of persons or bodies providing civil legal services or criminal defence services (whether in individual cases, or by reference to the provision of such services in specified numbers of cases), the Commission shall have regard, among the matters which are relevant to –

(a) the time and skill which the provision of services of the description to which the question relates requires;

(b) the number and general level of competence of persons providing those services;

(c) the cost to public funds of the remuneration of persons or bodies providing those services; and

(d) the need to secure value for money.

8.-(1) The Lord Chancellor may give guidance to the Commission as to the manner in which he considers it should discharge its functions.

(2) The Commission shall take into account any such guidance when considering the manner in which it is to discharge its functions.

(3) Guidance may not be given under this Article in relation to individual cases.

(4) The Lord Chancellor shall either –

(a) publish, or

(b) require the Commission to publish any guidance given under this Article.

12.-(8) The Lord Chancellor –

(a) may by direction require the Commission to fund the provisions 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 those services in circumstances specified in the authorisation or, if the Commission requests him to do so, in an individual case so specified.

(9) A direction or authorisation under paragraph (8) may impose limitations on the funding of a service specified in Schedule 2, and may, in particular, require or authorise the Commission to fund the service for a limited period, for the purposes of specified proceedings only, or for the purposes of limited aspects of proceedings.

(10) Articles 13-20 do not apply to civil legal services funded under a direction or authorisation under paragraph (8) unless they are applied (with or without modifications) by the provisions of the direction or authorisation.

(11) The Lord Chancellor shall either –

(a) publish, or

(b) require to be published, any authorisation under paragraph (8)(b), unless it relates to an individual case,( in which case he or the Commission may publish it if appropriate.) ……………………

(46) – (2) No directions may be given by the Lord Chancellor to the Commission under Part II in relation to individual cases. ………………….

The relevant Article in this matter is Article 2 which states:

"Exceptional Legal Aid

2. After Article 10 of the Legal Aid Advice and Assistance (Northern Ireland) Order 1981 (NI8) insert -

'Exceptional Legal Aid

10A(1) The Lord Chancellor may by direction require that Legal Aid is to be available in connection with excluded proceedings in circumstances specified in the direction.

(2) If the Commission requests him to do so, the Lord Chancellor may authorise Legal Aid to be available in connection with any proceedings (whether excluded proceedings or not) –

(a) in circumstances specified in the authorisation;

(b) in an individual case so specified.

(3) For the purposes of this Article, "excluded proceedings" means proceedings before a court or tribunal which are not -

(a) proceedings of a description mentioned in Part I of Schedule 1;

(b) proceedings for the purpose of which free Legal Aid may be given under Part III; or

(c) proceedings in relation to which assistance by way of representation may be approved under Article 5.'"

(4) Legal Aid under a direction or authorisation under this Article shall consist of such representation, on terms provided for by the direction or authorisation, by a solicitor or by counsel (or by both) as is specified in the direction or authorisation.

(5) In paragraph (4) "representation" includes all such assistance as is usually given by a solicitor or counsel in -

(a) the steps preliminary or incidental to proceedings; or

(b) arriving at or giving effect to a compromise to avoid or bring an end to proceedings;

(6) A direction or authorisation under this Article may make provision about financial matters relating to Legal Aid under the direction (including, in particular, provision about eligibility, contributions, charges, remuneration and costs).

(7) Articles 10(3) to (5a), 11, 12, 14, 16 and 17 and Schedule 2 do not apply to Legal Aid under a direction or authorisation under this Article, unless they are applied (with or without modification) by the provisions of the direction or authorisation.

(8) A direction or authorisation under this Article may be varied or revoked."

I shall hereinafter refer to Article 10A of the 1981 Order as "Article 10A".

"37. Thus the effect of the McKevitt judgment with that first, the part funding for the Omagh families civil action could not continue to be provided through the Omagh direction and, second, the extant statutory exceptional power had to be reviewed with a view to its replacement. …

38…. The Legal Aid (Northern Ireland) Order 2005 was then introduced, which repealed Article 12(8)-(11) of the 2003 Order and inserted a new exceptional grant power into the 1981 Order, at Article 10A. This provision permits the Lord Chancellor to direct the Commission that legal aid be available in connection with excluded (out of scope) proceedings and circumstances in the direction. It also enables him, if requested to do so by the Commission, to authorise legal aid in connection with in-scope as well as out-of-scope proceedings, both in relation to categories of proceedings and in relation to individual cases. It was considered necessary to include an extraordinary grant of power in relation to in-house-scope cases to rectify the inflexibility of the 1981 Order…..

39. It is this 2005 Order, the Commission's request, and the Lord Chancellor's authorisation, for funding in the Omagh action made under the new Article 10(a) of the 1981 Order which together are the subject of the present proceedings."

Under the powers conferred on the LC by Article 10A(2)(b) of the 1981 Order, the LC was entitled to authorise the Commission to fund the action in this matter. That authority was granted by the Parliamentary Under Secretary of State for Constitutional Affairs (hereinafter called "the Minister") by the authority of the LC on 11 February 2006 ("the authorisation"). That authorisation, which was before me, stated at paragraph 4:

"The Commission is hereby authorised to fund the plaintiff's action, subject to paragraph 3, up to a maximum cost of £998,368.93 plus VAT."

That sum was then broken up into various categories as referenced to professional fees, counsel's fees and displacement

Paragraph 8 of that authorisation stated:

"The Commission shall pay the sum of £25, 711.69 plus VAT to H2O within 7 days of the date of this authorisation in respect of its invoice numbered 5718, being authorised work, for the purpose of this authorisation. This payment forms part of the sum outlined at paragraph 4 above."

[19] Ms Higgins QC, who appeared on behalf of the applicants with Mr Doran submitted that this authorisation of retrospective payments was unlawful in that the 1981 Order as amended did not give power to the Commission to make retrospective payments. It was her submission that the terms of the Order did not empower the Commission to seek authority for legal aid payments in respect of work carried out on a case before a decision was taken to grant legal aid.

"Article 10A(2)(b) of the 1981 Order also empowers me, if the Commission requests me to do so, to grant an authorisation to enable it to provide exceptional legal aid in an individual case in connection with non-excluded proceedings, that is proceedings which fall within the scope of ordinary legal aid. However in view of the scope of the statutory scheme, the Commission's request would have to be compelling before I would entertain authorising exceptional legal aid funding for such an individual case which has not satisfied the prescribed test for ordinary legal aid".

Mr Sales QC who appeared on behalf of the respondent with Mr Lewis made the following points:

"Any funding provided under Article 10A is discretionary. Accordingly the Commission will not issue a legal aid certificate but will instead issue a letter offering a grant up to a sum specified in each case. The grant itself is the authority for payment"

"The Commission will try to deal with applications as quickly as possible but inevitably there will be some cases where a final decision cannot be made before the hearing and question has taken place. Since any funding under Article 10A will be by way of a one-off grant (that is, it does not involve the issuing of a certificate), it is within a minister's power to approve funding retrospectively if necessary. However, this will only be considered if the application for funding was made to the Commission at the earliest reasonable opportunity."

I consider that the applicants' argument is unsustainable for the following reasons:

"The primacy of the text is the first principle of interpretation for the judge considering a point of interpretation."

At page 248 he went on to say:

"The purpose of interpretation is to ascertain the meaning of the language employed in a text, taking into account syntax, background and social context."

The essential setting of the text of 10A is against the backdrop of the absence in Northern Ireland, prior to November 2003, of any statutory exceptional grant power either under the 1981 Order or elsewhere. This was in stark contrast with the position in England and Wales. In the absence of a statutory exceptional power in Northern Ireland, in July 2000 the LC had established an ex gratia scheme to allow public funding for representation in exceptional cases involving inquests in Northern Ireland (see Andrews affidavit at paragraph 21). The LC had clearly sought a suitable vehicle to bring forward a statutory exceptional grant power in Northern Ireland to place the exceptional funding scheme on a statutory basis for the future. That led eventually to the 2003 Order to allow the exceptional grant provision to work within the context of Part II of the 1981 Order. The McKevitt challenge by way of judicial review in turn led to the introduction of the 2005 Order. This background illustrates that this legislation was intended to be wholly exceptional and quite distinct from the former inflexible provisions of the 1981 Order. Indeed the purpose of Article 10A was to make public funding available in cases where the LC considers that the ordinary rules governing legal aid were inappropriate and should be dis-applied. I have no doubt that this contextual setting lends weight to the argument of Mr Sales that Article 10A must not be interpreted narrowly in a manner that would frustrate the purpose of the legislation. A wholly separate vehicle from the certificate based approach of the 1981 Order was now to be invoked and that in itself is illustrative of the need to distinguish cases such as Leyburn where the conventional certificate based approach to legal aid was under scrutiny. Hence I do not find my interpretation of the terms of 10A in anyway constrained by the Leyburn case.

It was the applicants' case that the LC was guilty of procedural impropriety and unfairness in denying them their legitimate expectation that the proposal to grant the Commission and the LC a power to fund exceptional cases which were not excluded from the ambit of the 1981 Order would be consulted upon. Ms Higgins relied on what she claimed was the established practice of government of consultation on such issues. Alternatively counsel submitted that the principles of fairness required this proposal be consulted upon and specifically required that the applicants or their representatives were consulted and afforded an opportunity to make representations given that the government has consulted with the plaintiffs and their representatives and afforded them the opportunity to make representations.

"Effective consultation is a key part of the policy making process. People's views can help shape policy developments and set the agenda for better public services. But we also need to make the process of consultation less burdensome."

Mr Sales made a number of submissions which included the following ;

Article 10A(2) of the 1981 Order enabled the LC, if the Commission requested, to authorise legal aid for excluded and in-scope proceedings ie proceedings for which legal aid is in principle available under Part II of the 1981 Order subject to the ordinary merits and means tests. The Article was inserted into the 1981 Order by the 2005 Order. The 2005 Order was made under the schedule to the Northern Ireland Act 2000. Whilst the NI Act 2000 provides that orders made under paragraph 1(i) should be subject to the scrutiny and approval of each House of Parliament, it does not impose any statutory duty to consult on such orders. In any event there is no right to be heard before the making of legislation, whether primary or delegated unless provided by statute. Accordingly there is therefore no express statutory obligation to consult.

"None of the Omagh plaintiffs or their legal representatives were consulted by the Government on the introduction of the Article 12(8) power in the 2003 Order in this transitional form or the 2005 Order. I can make this statement from my own dealings in this matter as a senior relevant official in the public legal services of the NICtS and also, having for the purpose of making this affidavit, made further specific enquiries myself and through officials with senior officials in the other relevant sections of the NICtS, the Department for Constitutional Affairs, the Northern Ireland Office, the Lord Chancellor's Private Office and the Prime Minister's Private Office. The meetings of the Lord Chancellor and others within Government did take place with the Omagh plaintiffs reiterated a commitment to make funding available for their case and explained that in the light of the McKevitt judgment a new and lawful legislative mechanism would need to be found, if necessary primary legislation."

CONCLUSION

I have concluded that there is no basis for the proposition that the applicants in this case had a legitimate expectation for consultation either generally or on a targeted basis. My reasons for this conclusion are as follows:

"There is a general practice within government of consulting with the public and stakeholders in proposals to make major legislative changes. This general practice of consultation applies to major changes to the legal aid system. Thus, when a fundamental change of policy has been considered which will/may impact on litigants, the courts or the legal profession, there has been public consultation. Depending on the extent of the proposed legislative change, however, a targeted consultation only might take place, for example, in relation to legal aid, consultation might be limited to the legal profession and other relevant stakeholders such as the Commission and voluntary sector providers including the Law Centre (NI) and Children's Law Centre. There is, however, no practice of consulting with the public at large or the legal profession/other stakeholders regarding limited and specific as opposed to systemic changes to the legal aid scheme or in relation to the funding available to grant legal aid even though such measures may have an impact on the availability and level of legal aid for individual cases."

"The majority of extensions to the legal aid scheme are subject specific and are often intended to facilitate the smooth operation of new legislation being brought forward by the Government. Extensions to the scope of legal aid of this kind, which facilitate litigants, have not generally be subject to consultation. Thus for example there was no consultation held in relation to the making of any of the directions 1 to 4 under Article 12(8)(a) of the 2003 Order, nor the direction and generic authorisations under the 2005 Order, ….equally there has been no consultation regarding regulations introduced on an annual basis to increase the financial eligibility limits for civil legal aid.

"The applicants assert that there is a practice of public consultation on any measure that has impact on the funds available for legal aid. That assertion is not correct. There is no practice of consulting on changes to the financial eligibility limits under the legal aid scheme."

"For completeness, I confirm that no consultation took place in relation to the making of any of the five commencement orders which have been made, to date, bringing in to operation various provisions in the 2003 Order – including those made at the time when the statutory exceptional grant scheme under Article 12(8) of the 2003 Order was introduced."

"As Lord Diplock explained in CCCSU v. Minister for the Civil Service [1985] 1 AC 374, however, the question of procedural propriety has to be looked at in the light of the particular circumstances in which the relevant decision was made . . . I have come to the conclusion that the correct inference to be drawn from the evidence is that these proposals were put forward in order to meet a situation which had become much more urgent and critical than had been envisaged only a short time before . . . Accordingly I have come to the conclusion that the announcement of the proposals on 12 November did not involve any procedural impropriety nor did it deny the Law Society an opportunity which it could legitimately expect in the circumstances existing last Autumn (my emphasis)."

I consider that for the reasons set out in paragraph 53 and 137 of this judgment the urgency of the matter was yet a further factor militating against the consultation proposed by the applicants.

FETTERING OF DISCRETION AND BIAS

In paragraphs 4(3)(c) and (d) of the grounds set out in the statement under Order 53 Rule 3(2), the applicants alleged that the LC was guilty of procedural impropriety and unfairness in appearing to have or actually having pre-determined the question of whether or not an exceptional grant of legal aid should made to the plaintiffs and thereby was guilty of apparent, if not actual, bias. Further he had been similarly guilty in unlawfully fettering his discretion by determining the issue of whether exceptional legal aid should be granted to the plaintiff.

In the course of very lengthy and extremely detailed submissions Ms Higgins made the following points:

(a) In August 2003 the Secretary of State for Northern Ireland announced that the government would provide funding for the Omagh civil action. Later that month Lord Filkin met the Omagh families and confirmed that commitment.

(b) In September 2003 the LC met the Omagh families and reaffirmed the decision to make funding available to support their civil action although the funding device had still to be finalised.

(c) In February 2004, the funding mechanism was deployed and funding commenced with a first payment.

(d) In August 2005 the McKevitt decision found that the combined effect of the two transitional instruments which had been brought forward was to create a power which went beyond the powers contained in the Access to Justice (Northern Ireland) Order 2003. That terminated the route created to fund the Omagh civil action. The briefing provided to the LC for a meeting with the families on 5 September 2005 recorded at paragraph 9:

"Consistent with your indications we have advised representatives of the families, and their legal team, that the judicial review has no impact on the undertaking given. Officials have stressed that the real issue is how to secure a mechanism which will be sufficiently robust to sustain funding despite further challenges."

(e) At the meetings between the Omagh families and the LC on 5 September 2005, he reiterated that he would now need to find a mechanism which would not be found to be unlawful. Mr Michael Gallagher representing the Omagh Self-Group is recorded as saying:

"Mr Gallagher welcomes the Lord Chancellor's assurance but stressed that there should be no delay in providing alternative funding as this would have an adverse impact on a civil trial. After a short discussion on the likely timing of the trial and the interface with the Hoey criminal proceedings, the Lord Chancellor indicated that if funding requires the equivalent of primary legislation he will take that course of action. The Lord Chancellor indicated that at the remedies hearing on 9 September the current funding direction for Omagh would be removed. However there was a clear commitment to continue to fund the civil action."

"You mentioned that we cannot talk about the purpose of the Order in Council being to enable us to provide funding for Omagh, as this would fetter the Minister's discretion. On this basis, can we use the justification of 'Omagh families cannot take forward their case without funding' as the basis of the argument for the urgency procedure as I think was suggested at the meeting? And within the constraints are we still likely to be able to say something about the Order which mentions Omagh but is carefully worded like 'the recent ruling in the judicial review has revealed the need for further reform; the Govt's commitment to fund the Omagh families remains; this reform will allow such cases as this one to be considered on a case by case basis.'"

…As such we are recommending to the Lord Chancellor that he writes to the Secretary of State for Northern Ireland re the making of the order by the accelerated procedure. To this end I attach the latest draft of the Order and a draft letter to the Secretary of State for Northern Ireland which I trust will be helpful in enabling you to prepare advice for the reply.

I hope to issue the submission to the Lord Chancellor tonight with a letter to the Secretary of State for Northern Ireland following directly. We should then be in a position (subject to prompt and helpful replies) to get the draft order laid this day week, which would give four weeks for the necessary debates before being made at the December Privy Council.

Against this background I only need to reply to the second half of your first point – we need to be clear in the speech and lines to take for the debates that the commitment to fund Omagh stands and that there is a mechanism which would accommodate such an application. However any such application would be considered on a case by case basis. We will share lines on this point to ensure that there are no downstream consequences for you."

Mr Sales made the following arguments:

LEGAL PRINCIPLES GOVERNING THE CONCEPTS OF BIAS

"In my opinion the conduct of the auditor requires to be looked at as whole and in the context of the procedure which is laid down in the statute. …..The Act does not enable him to pass his responsibility to someone else. It is his duty, as the person in charge of the audit within the context of which the objections are made, to deal with them himself and, if they are well founded, to take such action as he is required to take on them by statute."

"(It is) jurisprudentially a different thing from a disqualifying interest held by a participant in the process. There may well be facets of the statutory setup which contemplate dealings at less than arms length between a planning authority and a developer, and these may in turn qualify the questions about which independent judgment must be brought to bear, and so preserve a decision in which the planning authority has a pecuniary or other interest. But there is a difference of kind and not merely of degree between this situation and the situation of a participant member of a decision making body who has something personally to gain or lose by the outcome."

"The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking a particular planning decision and it is easy to overstate the difference between the application of a policy and decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade and Forsyth, Administrative Law, (9^th Edition at 472) says:

"It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and a fair procedure generally. But the minister's decision cannot be impugned on the ground that he has advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to Government policy."

"On my view of the evidence, the council had become so closely associated with the company in attempts to secure planning permission for the company's project that by 1975 it had completely surrendered its powers of independent judgment as a judicial tribunal. I think it is not open to doubt that the council, and its delegated committee, convened this meeting with a closed mind, impervious to whatever evidence the objectors might submit and determined to uphold the validity of this commercial development which it had laboured so long to create. "

"The protection of these basic (human) rights from majority decision requires that independent and impartial tribunals should have the power to decide whether legislation infringes them and either (as in the United States) to declare such legislation invalid or (as in the United Kingdom) to declare that it is incompatible with the governing human rights instrument. But outside these basic rights, there are many decisions which have to be made every day (for example, about the allocation of resources) in which the only fair method of decision is by some person or body accountable to the electorate".

I have come to the conclusion that there is no substance in the allegations of procedural impropriety and unfairness of the LC set out at grounds 3(c) and (d) of the Order 53 statement for the following reasons:

"Before requesting an authorisation to fund representation in an individual case in connection with non excluded proceedings, I would expect the Commission to be satisfied that the case:

(a) would establish or uphold and develop new and important legal principles;

(b) would have an unprecedented impact in its consequences for the applicant and be of direct benefit to society at large; and

(c) is, in terms of its complexity and expected duration, distinct from other cases having regard to the applicant's capacity to represent him or herself effectively."

"The Committee may wonder whether the power would enable further funding to be made available for the Omagh civil action. In theory that would be possible but as the Committee will appreciate from the text of the Order and from the draft guidance, funding for the Omagh civil action is a matter in the first instance for the Commission to determine; it become relevant only if the Commission requests authority to fund the action. Any Minister who receives such as request would have to consider it in the same way as any other request – on the merits of the case and against the general principles set out in draft guidance".

I find that to be an impeccable statement of the duties cast on a Minister in such circumstances.

"As one aspect of my consideration of the case and my preparation of the submission to the Minister, the case plan (and associated costings) which formed part of the Omagh plaintiffs' application for funding was scrutinised"

LACK OF CANDOUR

THE APPLICANTS' CASE

"Furthermore the Lord Chancellor must be taken to know, as a lawyer, and through his officials, that what he was doing was unlawful and wrong and that he was unlawfully fettering his discretion. Similarly he must also be taken to know that he was not impartial, that he was acting contrary to Parliament's intention that he should not have a role in granting legal aid in individual cases, that consultation should have occurred and that he presented to the court an inaccurate, incomplete and ambiguous account of events".

In addition the skeleton argument asserted:

"It appears that the Lord Chancellor – with the help of his officials – has not merely been guilty of significant breaches of duty of candour of the court, he has knowingly and deliberately acted unlawfully – at the very least in relation to the fettering of his discretion – and he has sought to mislead the public about what he was doing. The lack of regard for the rule of law and for his duty to the court from the holder of one of the highest offices in the land and the person with overall responsibility for the administration of justice is a matter of considerable concern. It ought to be unthinkable that a Lord Chancellor would not at all times seek to uphold the rule of law and respect his duty to the court".

"In or about mid August 2003 the Government made a commitment to provide part funding to support the Omagh families' civil action. Following the ruling in the McKevitt case, in September 2005, the Lord Chancellor reiterated the commitment to make funding available for the civil action. The Government has throughout been open and candid in terms of the policy decision to provide funding for the Omagh families civil action".

"Following the McKevitt ruling, officials sought to formulate an alternative lawful mechanism under which such funding could in principle be granted. It was decided that the best mechanism was for legislation to be brought forward in the form of the 2005 Order. That legislation, again as I have explained above, was also brought forward for the purpose of meeting the important policy objective to enable exceptional grant funding to be made available in exceptional cases, both existing cases (for which funding had been granted under the impugned Article 12(8) power) and any future exceptional case where funding would not otherwise be available.

77. In my experience, there is nothing unusual or untoward about proceeding in this way. It is the task of Government, in whatever sphere of activity is under consideration, when a problem has been identified, to develop a policy to deal with that problem and to bring forward legislation to implement the policy. Since part of the policy objective introduced in the 2005 Order was to ensure that funding could be provided on an exceptional basis to cases which could not otherwise attract funding, as highlighted by the Omagh case, it is unsurprising that the powers that are used to promote that policy objective were used (after the requisite request from the Commission and after due consideration of the specific application) for that purpose."

The case made by Ms Higgins was that in deciding to request the Article 10(A(2)(b) authorisation the Commission had acted unreasonably and in breach of the principles of fairness in that it failed to take any account of:

(a) The need to ensure the propriety of the proposed expenditure which included an assessment of the merits of the plaintiffs claims.

(b) The need to ensure value for money.

(c) The need to ensure that there were in place proper financial controls over the expenditure covered by the exceptional grant.

Mr O'Hara submitted that the obligation on the Commission and Mr Crossan in particular was to follow the guidance that the LC had set out for exceptional legal aid funding under Article 10A of the 1981 Order. In particular, paragraphs 32-36 are as follows:

"Exceptional funding for representation in non excluded proceedings.

32. Article 10A(2)(b) of the 1981 Order also empowers me, if the Commission requests me to do so to grant an authorisation to enable it to provide exceptional legal aid in an individual case in connection with non excluded proceedings, that is proceedings which fall within the scope of ordinary legal aid. However in view of the scope of the statutory scheme, the Commission's request would have to be compelling before I would entertain authorising exceptional legal aid funding for such an individual case which had not satisfied the prescribed tests for ordinary legal aid.

33. Only the Commission can request me to grant an individual authorisation in connection with non excluded proceedings. Such a request can only arise out of the Commission's consideration of an application for ordinary legal aid.

34. I would not expect the Commission to request me to grant such an individual authorisation unless it considered that the circumstances of the case were wholly exceptional. It is only in such wholly exceptional circumstances that the provision in Article 10A(2)(b) of the 1981 Order would be engaged. Accordingly, the Commission will not have to consider invoking this provision in the vast majority of individual cases which fail to meet the proscribed tests in respect of ordinary legal aid as they will not possess the wholly exceptional circumstances which would merit consideration under this power.

35. Before requesting an authorisation to fund representation in an individual case in connection with non excluded proceedings, I would expect the Commission to be satisfied that the case:

(a) would establish or uphold and to develop new and important legal principles.

(b) would have an unprecedented impact in its consequences for the applicant and be of direct benefit to Society at large; and

(c) is, in terms of its complexity and expected duration, distinct from other cases having regard to the applicant's capacity to represent himself effectively."

I find no basis whatsoever for concluding that the Commission and Mr Crossen ought to have acted other than in compliance with the guidelines provided by the LC. This was quite clearly exceptional legislation for which specific criteria had been laid down in the guidelines. I find nothing unreasonable in the Commission adhering to that guidance. Paragraph 7 of Mr Crossan's affidavit made it clear that he had looked at each of the three elements at paragraph 35 of the guidance and had formed a favourable conclusion in relation to each of them. In my view it was not unreasonable to then conclude that he should not apply the normal criteria for legal aid by conducting a detailed analysis of the merits of the claims individually or collectively or impose the usual value for money assessment. To do so might well have frustrated the precise purpose of the legislation and the criteria of the guidance. He concluded that the claims brought by the plaintiffs had the potential to develop and advance a civil law which had not been regularly used to hold individuals personally liable for terrorist acts. In any event, as a failsafe, he recognised, as in the event occurred, that the LC would have to be satisfied as to the rates being charged and the way in which the payments would be monitored. That is precisely what Mr Andrews did. The authorities relied on by Ms Higgins contain no reference to the nature of exceptional funding contemplated by the legislation now being considered. Normal rates of pay, the frequency of payment, the nature of the scrutiny, and the concept of value for money had all to be revisited in the context of the purpose of exceptional funding and the criteria in the guidelines.