Tirkey, R (on the Application of) v The Director of Legal Aid Casework & Anor, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3403 (Admin)

Resolution Date:December 21, 2017
Issuing Organization:Administrative Court
Actores:Tirkey, R (on the Application of) v The Director of Legal Aid Casework & Anor
 
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Case No: CO/6073/2016

Neutral Citation Number: [2017] EWHC 3403 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

THE HON. MR JUSTICE WILLIAM DAVIS

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Between :

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Mr Peter Oldham QC, Mr Zac Sammour and Miss Jen Coyne (instructed by ATLEU Solicitors) for the Claimant

Mr Martin Chamberlain QC and Mr Malcolm Birdling (instructed by GLD) for the Defendant

Hearing dates: 6-7 December 2017

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JudgmentMr Justice William Davis:

Introduction

  1. The Claimant is an Indian national born in August 1956. Early in 2008 she began to work in domestic service for a Mr and Mrs Chandhok. Initially she worked for them in India. In May 2008 she was brought by them to the United Kingdom. They arranged the visa for her to enter the United Kingdom. The Chandhoks were and are settled in this country. Between May 2008 and November 2012 the Claimant worked for them at their home in Milton Keynes. She did so in conditions of servitude.

  2. The Claimant then sought legal advice regarding a claim for compensation against the Chandhoks. In due course she took proceedings in the Employment Tribunal. She was granted Exceptional Case Funding by the Legal Aid Agency. The grant of funding was not immediate or straightforward but nothing turns on that for the purposes of these proceedings. Proceedings in the Employment Tribunal were protracted. The Claimant made a claim for caste discrimination which was the subject of a preliminary ruling by the Employment Tribunal, a ruling which was appealed unsuccessfully by the Chandhoks to the Employment Appeal Tribunal.

  3. The full liability hearing before the Employment Tribunal occupied 8 days during July 2015. In a decision handed down on 17 September 2015 the Employment Tribunal found that the Chandhoks had failed to pay the Claimant the National Minimum Wage, the total shortfall being £183,773.53 which the Chandhoks were ordered to pay to the Claimant as an unlawful deduction from her wages. The tribunal also found that the Claimant had been unfairly dismissed, was the victim of unlawful harassment on the ground of her race and was the victim of indirect religious discrimination. Also the Chandhok were found to be very substantially in breach of the Working Time Regulations. There was no finding as such that the Claimant had been trafficked or had been held in servitude. Such findings strictly would have been outside the jurisdiction of the Employment Tribunal. However, the factual findings of the tribunal were wholly consistent with the proposition that the Claimant was a victim of trafficking and that she had been held in servitude by the Chandhoks.

  4. The Employment Tribunal conducted a remedy hearing over 2 days on 5 and 6 November 2015. The judgment on remedy was promulgated on 4 December 2015. The overall award (which was in addition to the order made in respect of the unlawful deduction from wages) was £82,762.61. This included awards for unfair dismissal, injury to feelings by reason of discrimination on grounds of race and religion, aggravated damages in respect of the discrimination and damages for personal injury. Thus, the total award made to the Claimant was £266,536.14.

  5. Throughout the proceedings in the Employment Tribunal the Claimant was represented by the Anti-Trafficking and Labour Exploitation Unit (``ATLEU''). ATLEU represents the Claimant in these proceedings. However, ATLEU is not funded to undertake work in relation to enforcement of any award obtained in proceedings. It is their practice to refer enforcement to Freshfields Bruckhaus Deringer (``Freshfields''). Freshfields then undertake enforcement on a pro bono basis, something for which that firm is wholly and unreservedly to be commended. As turned out to be the case here, the process can be lengthy and costly. It is undertaken at no cost to someone in the Claimant's position.

  6. Freshfields were instructed shortly before the promulgation of the liability decision of the Employment Tribunal. As soon as the decision was available, it was clear to Freshfields that there was a serious risk that the Chandhoks would seek to avoid the financial consequences of the decision by dissipating their assets. The decision referred to the mendacious manner in which they had conducted the proceedings and to their willingness throughout to ignore legal obligations. Therefore, Freshfields recognised the need to take urgent steps to enforce the decision. It was known that the Chandhoks' main asset was a residential property in Milton Keynes. The day after the liability decision was handed down, they registered the decision at the Central London County Court. On 22 September 2015 Freshfields made an application to the same court for an interim charging order on the Milton Keynes property. At all times they made clear to the court that the application was urgent, both when it was first submitted and on 23 October when the application was re-submitted at the court's request due to a clerical error in the initial application. In the event the court did not allocate the application to a judge until three weeks after the re-submission of the application. Thus, it had not been dealt with by 9 November 2015. That was the date on which the Chandhoks transferred title in the property to a third party thereby frustrating the attempt by Freshfields to preserve the asset for the purposes of enforcement.

  7. Freshfields were able to take steps to avoid complete dissipation by the Chandhoks of their assets. However, the total sum recovered by way of enforcement was only £35,702.80 i.e. around 13% of the overall award. Because the Claimant was in receipt of legal aid, the Legal Aid Agency (on behalf of the Lord Chancellor) exercised its statutory charge over that recovered amount to the value of the legally aided service received by her. That charge extinguished the recovered amount with the result that the Claimant has received none of the award pursuant to the decision of the Employment Tribunal. In these proceedings she claims that the application of the statutory charge to the sum recovered by her is unlawful because it breaches her Convention rights under Articles 4, 6 and 14 of the European Convention on Human Rights and under Article 1 Protocol 1 of the same Convention. She further claims that application of the statutory charge in her case is unlawful by reference to the Charter of Fundamental Rights of the European Union and the European Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.

    The Statutory Framework

  8. Current provision of civil legal aid is governed by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (``the Act''). The Claimant's claim against the Chandhoks proceeded in the Employment Tribunal. Civil legal aid is not generally available in such proceedings. The Claimant fell within Section 10 of the Act as an exceptional case. The relevant part of Section 10 is in these terms:

  9. Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

  10. This subsection is satisfied where the Director--

    (a) has made an exceptional case determination in relation to the individual and the services, and

    (b) has determined that the individual qualifies for the services in accordance with this Part,

    (and has not withdrawn either determination).

  11. For the purposes of subsection (2), an exceptional case determination is a determination--

    a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of--

    i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or

    ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

    b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

  12. The fact that the Claimant fell within the exceptional case criteria nonetheless required the Legal Aid Agency to determine whether the Claimant qualified for civil legal aid under Section 11 of the Act. First, the Claimant's financial resources had to be such that she was eligible. Second, the Legal Aid Agency had to consider the criteria identified in the Regulations made under Section 11 of the Act. One factor which the criteria had to reflect was ``the likely cost of providing the services and the benefit which may be obtained by the services being provided...'' (Section 11(3)(a)).

  13. The regulatory regime required by Section 11 of the Act is contained in the Civil Legal Aid (Procedure) Regulations 2012 and the Civil Legal Aid (Merits Criteria) Regulations 2013.

    Where (as here) representation is sought for bringing proceedings (called ``full representation'') the Merits Regulations require that cost benefit criteria are met. The cost benefit criteria assess whether the potential benefit justifies the cost. In respect of damages claims, this is by reference to the criteria specified in reg 42(2) (which involves assessment by reference to the prospects of success and the likely damages), unless the case is assessed as being of ``significant wider public interest'', in which case a proportionality test (set out in regulation 8) applies''

    In the context of a monetary claim the benefits of the claim consist of the likely damages. That term is defined in Regulation 9 of the 2013 Regulations.

    ``Likely damages'' means the amount of any damages or other sum of money contested in the case that the individual who is applying for civil legal services is likely to receive if substantially successful at trial or other final...

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