JUDGMENT

THE MASTER OF THE ROLLS: I will ask Lord Justice Brooke to give

the first judgment.

LORD JUSTICE BROOKE: This is an appeal by Mr Ewing, who is a vexatious litigant, from a judgment of Turner J on 10 November 1994. By that judgment the judge refused Mr Ewing's application for judicial review of a decision by the London Legal Aid Area Committee, on 7 July 1992, to dismiss his appeal against the refusal to grant him legal aid in connection with an appeal by way of case stated against a liability order made against him by the Highbury Corner Magistrates' Court, on 19 June 1991, in the sum of £96.46 plus costs. That order related to Mr Ewing's liability for community charge.

There appears to have been no dispute about the quantum of liability but Mr Ewing had raised issues concerned with the admissibility in evidence of the documents the Local Authority had to show that it had served as a condition precedent to the making of a liability order. He then obtained the necessary permissions from High Court judges to enable him, as a vexatious litigant, to apply for a case to be stated by the Magistrate to pursue an appeal by way of case stated, and to apply for the case to be amended.

All these procedures had been completed by 5 January 1992. On 3 March 1992 he made an application for legal aid in connection with his appeal by way of case stated. This application was refused on 30 March and the Area Committee dismissed his appeal on 7 July 1992 in the decision which is impugned in these proceedings. I should add by way of completeness that Mr Ewing was granted leave, pursuant to section 42 of the Supreme Court Act 1981, by two more High Court judges to apply for leave to apply for judicial review and then to appeal to this court from the judgment of Turner J who himself granted leave to appeal. All those grants of leave was were made on the basis that the appeal or application was properly arguable and/or alternatively had a reasonable prospect of success.

The court has seen exhibited the advice which counsel provided for the legal aid authorities on which he successfully obtained legal aid in relation to these proceedings in the Court of Appeal. He said of the grant of leave by Dyson J under section 42 of the Supreme Court Act:

In my judgment that expression of opinion reveals a complete misunderstanding of what a High Court judge does when he grants leave under Section 42.

The question at the heart of these proceedings is whether the Area Committee erred in law in maintaining the refusal to grant Mr Ewing legal aid in connection with his appeal to the High Court on a point of law against the liability order. The Committee said in its refusal letter that his application had been dismissed because the value of the subject matter of the claim was too small to justify the grant of legal aid.

There was before Turner J an affidavit by the chairman of the relevant subcommittee of the Legal Aid Area Committee, who is a partner in a firm of solicitors. He said that the important principles of law regarding the applicant's community charge appeared to be limited to technical shortcomings in the way in which the Local Authority obtained the liability order. He continued:

In response to a suggestion made in the context of these proceedings as to the fact that imprisonment was the ultimate sanction for failure to pay a liability order and this ought to have affected their minds, the Chairman commented that Mr Ewing would have been given time to pay by instalments appropriate to his means and that he would only be imprisoned if he defaulted thereafter.

The relevant statutory provisions are to be found in Section 15 of the Legal Aid Act 1988 which provides, so far as is material:

No question arises in relation to subsection (1) in the present case. The tests mentioned in subsections (2) and (3) are commonly referred as to the "legal merits test" and the "reasonableness test". No issue arises in relation to the legal merits test.

The first point that Mr Ley makes on the hearing of this appeal is that an application for a liability order is the first step down the road towards imprisonment. In the context of criminal proceedings legal aid is granted for the defendant to contest a charge for which he is liable to be sent to prison, even though it requires a further hearing once the conviction is entered before a sentence of imprisonment is passed. He argues that just as a conviction is a sine qua non of an imprisonment in that context, so too a liability order is a sine qua non of imprisonment in the context of a failure to pay a community charge liability. For this reason Mr Ley submits that a liability order should be accorded the same status as a not guilty plea.

Mr Ley reminded us that in the recent decision of the European Court of Human Rights in Benham v the United Kingdom [1996] TLR 373, that court held that the failure to grant legal aid in community charge cases which led directly to an order for imprisonment was a breach of Article 6 (1) and (3) of the European Convention of Human Rights. We have seen the judgment of the court in that case (7/1995/513/597) which was handed down in Strasbourg on 10 June 1996. In my judgment, it is quite clear that the issue in those proceedings was whether the later stage of the proceedings to enforce community charge liability, which is the stage at which the Justices have to determine whether the community charge payer was guilty of culpable neglect to pay or wilful refusal to pay, with the possibility of a prison sanction if they made a finding against him, were criminal proceedings within the meaning of Article 6. In those circumstances, the court held that:

It is quite clear in my judgment that the issue with which the European Court of Human Rights was concerned in that case was the final hearing at which the issues to which I have just referred had to be determined. So far as the making of the original liability order is concerned, the fact that a liability order was made was mentioned without comment in paragraph 9 of the judgment of the court. The court was there describing the circumstances of the case which formed part of the distant background before the later hearing which took place before the full Magistrates on 25 March 1991, in consequence of which the Justices imprisoned Mr Benham.

Miss Carss-Frisk submits that the approach of Turner J was correct on this point. He accepted that if the making of a liability order would inexorably lead to a sentence of imprisonment, it might be that Mr Ewing would be on strong ground in submitting that the decision of the Committee to refuse to grant legal aid was unreasonable, but there were many things which had to happen following the making of a liability order before such a sentence could be passed. This was a factor the Legal Aid Committee had borne in mind when deciding in the exercise of its discretion not to grant legal aid.

For my part, I would agree with the approach of the judge. It is true that the making a liability order is a sine qua non of ultimate imprisonment if the person against whom the order is made has the means to pay, but decides by his conduct to neglect to pay in a way that the Magistrates later find is culpable, or wilfully refuses to pay. Many, many liability orders are made up and down the country which do not lead to that consequence. As the learned judge said, quite rightly, they do not lead inexorably to a sentence of imprisonment. In my judgment, the Legal Aid Committee directed itself quite rightly when it considered the relevance of this possible consequence of the making of a liability order.

The second point Mr Ley takes arises out of the fact that when the Chairman of the Committee swore his affidavit in this case, he exhibited the papers which were before the Committee. Those papers included a memorandum which gave advice to those concerned with making decisions in these cases of the effect of two recent judgments of the court: the judgment of Roch J (as he then was) in the case of R v The Legal Aid Area Committee No 10 (East Midlands), Ex parte McKenna (1990) 2 Admin LR 585; and the judgment of Simon Brown J (as he then was) in the case of R v Legal Aid Area No 8 (Northern) Appeal Committee, ex parte Angell (1991) 3 Admin LR 189 (to which I will refer below) in which that judge set out what has been accepted since then as the correct legal position in relation to the way the legal aid authorities should apply the reasonableness test.

Mr Ewing complains that there was a breach of natural justice because the Committee had available to it these observations on these two recent cases, and if he had been allowed to see the observations he would have had the opportunity to make submissions about them. In my judgment, there is no substance in this point. It is helpful for those who have judicial responsibilities to have recent cases drawn to their attention so that they may not make wrong decisions, particularly in a forum where the parties before them may not have the benefit of legal representation. In my judgment it would be going far to far to say that it is procedurally improper, or in some ways unfair, if those who have to make judicial decisions and receive this kind of advice about the effects of recent case law, do not disclose it to the parties before it.

The next point Mr Ley makes is the fact that Mr Ewing was granted leave as a vexatious litigant to appeal by way of case stated, showed clearly that his appeal was not frivolous or vexatious and had substantial merit in it. He submitted in this context that the case stated raised complex issues of law. When he was responding to the approach of the Chairman of the Committee, he said that the Committee gave the wrong answer when it applied the reasonableness test. A person of moderate means might well pay all he had to the Local Authority to avoid being incarcerated. If, as here, he did not possess the funds to pay off the whole of the debt and thereby avoid imprisonment, he would pay what he could afford to a lawyer in order to keep him out of prison. In those circumstances, it would be irrational in a Wednesbury sense to refuse legal aid to a person who had a meritorious appeal against a liability order when such an order was the first step and a sine qua non of his committal to prison. In this context the point about the effect of the recent ruling of European Court of Human Rights was repeated.

Miss Carss-Frisk has invited us to bear in mind what Dillon LJ said in Lawless v The Law Society (13 February 1989, unreported) at page 13D-G of the transcript:

This statement of principle was echoed by Neill LJ in the Divisional Court in R v Legal Aid Area Committee No 10, ex parte McKenna (1990) 2 Admin LR 585, at page 604C-D:

Miss Carss-Frisk submits that a court can only intervene if the Area Committee has been shown to have taken into account irrelevant considerations; or to have failed to take into account relevant considerations; or if the court is satisfied that the decision was based on a misunderstanding of the facts; or was one which no Tribunal which had properly directed itself on the facts could have reached.

As far as the reasonableness test is concerned, our attention has been drawn to the judgment of Simon Brown J in R v Legal Aid Area No 8 (Northern) Appeal Committee ex parte Angell & Ors at page 213 when he was considering regulation 78(c) of the then Civil Legal Aid (General) Regulations 1980 which contained an aspect of the reasonableness test in terms that are materially the same as the present test. He said:

Simon Brown J later approved the test as suggested in the Law Society's notes for guidance current at that time:

In my judgment, this is the correct approach for the Authorities to take on the reasonableness test and it was the test the Committee applied in the present case.

Miss Carss-Frisk submits that this case should be kept within reasonable bounds and in proportion. The underlying community charge liability was only £94.46 and the grounds on which Mr Ewing appealed were technical grounds, not grounds of substance. She contended that if the cost/benefit test for legal aid is to have any meaning it must be permissible for an Area Committee to consider that the reasonable test is not satisfied in circumstances like these.

All these matters have to be considered by the legal aid authorities on their own particulars facts. I am struck by the fact that if Mr Ley's submission is well-founded, the High Court would be besieged by applications against liability orders made by people of moderate means wishing to avoid being incarcerated. The fact is that they are not. In my judgment, the Committee were perfectly entitled to take the view it did, bearing in mind that the amount in issue was only £94.46, and that there will be no question of a sanction of imprisonment unless subsequently the community charge payer, although capable of paying, culpably neglected to pay or wilfully refused to pay. They were quite entitled, when asking the question "is the game worth the candle" to come to the answer "no". In my judgment, the decision of Turner J was quite right and I would dismiss this appeal.

I would say one thing by way of conclusion. At the hearing of this appeal there was placed before this court a bundle of 409 pages, all of which were copied for all three members of the court, and no doubt also for counsel taking part in the case. They represent every single page of every single exhibit which had been placed before the High Court. They included a large number of pieces of paper which, in my judgment, had no relevance to the fairly short point that the judge had to decide at the hearing of the judicial review application as to whether the Legal Aid Committee went wrong in law. This is by no means the first time that the court has had to make it clear to practitioners that this very wasteful copying of paper is not a proper way to conduct legal proceedings. In the context of this case my Lord, the Master of the Rolls, has already directed the taxing authorities to scrutinise with great care any application made by the applicant's/appellant's solicitors for remuneration out of public funds in relation to the great majority of the documents placed before this court.

Even if every single document were needed before the court below, there are clear practice directions from this court designed to limit the number of documents which are required for the purposes of this court when taking its decision. The effect of copying all these documents, quite apart from adding to the costs of appeal, almost inevitably increases the burden upon the judges of this court and the potential costs of the proceedings, all at the taxpayer's expense. In my judgment this exposes a lamentable state of affairs. Mr Ley defended his conduct by informing us that all this paper needed to be copied because he had had one experience before a Queen's Counsel, sitting as a Deputy High Court judge, in which he had unsuccessfully sought to put one single page before that judge which was not in the documents in evidence before him. As a result of that single experience he had always decided to act on the side of caution and copy everything to avoid any danger to his client. If that judge was wrong, Mr Ley's client would have had a right to appeal. In my judgment this would not excuse the wasteful proliferation of paper that the court has seen on this appeal.

LORD JUSTICE ALDOUS: I agree.

THE MASTER OF THE ROLLS: I also agree. We would draw attention to the fact that the practice directions of this court have not been complied with in regard to documents and that the matter should be brought to the attention of the Taxing Master, who should bear in mind the specific provision in the most recent practice direction that where the court is of the opinion, having heard the appeal or application, that the documents have been copied and included in bundles which could not reasonably have been thought necessary for the determination of the point in issue, it will not hesitate to make such costs order as may be appropriate. In that regard, we give liberty to apply in so far as may be necessary for the purposes of the clarification of what we have in mind.

Order: Appeal refused with costs. Costs of bundles should be disallowed save and in so far as the Taxing Master considers them reasonable in accordance with the judgment. Legal Aid taxation of appellant's costs.