Neutral Citation no. [2003] NICA 30
Ref:     
CARC3999

Judgment: approved by the Court for handing down
Delivered:
12/09/2003
(subject to editorial corrections)

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

IN THE MATTER OF AN APPLICATION BY HUGH JORDAN FOR JUDICIAL REVIEW

_____ 

Before: Carswell LCJ, Nicholson LJ and Coghlin J

_____ 

CARSWELL LCJ

   [1]  This is an appeal from a decision of Kerr J given on 26 July 2002, whereby he made a declaration that a decision of the Law Society’s Legal Aid Committee (the Committee) was unlawful.  The respondent had sought to challenge another decision, that of HM Coroner for Greater Belfast Mr John Leckey, to adjourn a preliminary hearing which he had arranged to hold in respect of an inquest into the death of the respondent’s son Pearse Jordan.  There has been long-drawn out litigation over the holding of this inquest.  The Coroner proposed to hold a preliminary hearing for discussion of a number of matters affecting the conduct of the inquest.  He decided to adjourn the hearing pending the giving of judgment by the European Court of Human Rights, which he considered was likely to affect his conclusions on the matters with which the preliminary hearing was concerned.  The respondent wished to challenge the decision to adjourn, on the ground that the Coroner had declined to hear submissions from counsel on the propriety of the decision.  He applied to the Law Society’s Legal Aid Department for legal aid to bring an application for judicial review, but was refused.  He then appealed to the Committee, which dismissed the appeal, on the ground that it was not reasonable for him to be granted legal aid for the application.  The respondent brought the present application for judicial review of the Committee’s decision, and the judge made a declaration that it was unlawful.  The Committee has appealed to this court against the judge’s decision.

   [2]  The background to this litigation over the inquest is set out fully in the decision of the European Court of Human Rights in Jordan v United Kingdom [2001] ECHR 24746/94, to which we would refer, and we do not think it profitable to repeat it in this judgment.  

   [3]  The inquest was adjourned and re-listed on a number of occasions and the Coroner then fixed a date for the commencement of the hearing on 19 April 2001.  He decided to hold a preliminary hearing on 31 January 2001 into a number of matters raised by the respondent’s solicitors.  The sequence of events which took place on 31 January 2001 is set out in paragraphs 6 to 8 of the affidavit sworn herein by the respondent’s solicitor Ms Angela Ritchie:

“6.	On the 31st January 2001, just minutes prior to the commencement of the Preliminary Hearing counsel representing the Applicant was advised that the Coroner was going to adjourn the Preliminary Hearing.  The reason advanced was the pending decision of the European Court of Human Rights in Hugh Jordan v United Kingdom.

7.	At the outset of the Preliminary Hearing, without inviting or hearing argument from any of the parties represented, the Coroner stated that he had decided that he was going to adjourn the Preliminary Hearing and that he was making that decision because he had become aware for the first time the previous evening, at about 9.00pm, of the substance of the imminent judgment of the European Court of Human Rights in the case of Hugh Jordan v United Kingdom.

8.	When asked by Mr Treacy QC, representing the Applicant, whether he had made up his mind on this issue or whether he was willing to hear argument on whether the Preliminary Hearing should proceed the Coroner stated that he had already made the decision and the Preliminary Hearing would be adjourning for the reasons set out above.”

   [4]  On 1 March 2001 the respondent’s solicitors made an application for legal aid to challenge the Coroner’s decision.  They enclosed with the application documents a draft of the papers grounding the judicial review proceedings and an opinion from Ms Karen Quinlivan of counsel.  The burden of counsel’s opinion was that the Coroner’s adjournment of the hearing without allowing counsel to address him was contrary to the rules of natural justice, and that the respondent therefore had an arguable case sufficient to obtain leave to apply for judicial review.  

   [5]  The application for legal aid was refused by the Legal Aid Department, and as soon as the respondent’s solicitors became aware of this they lodged an appeal to the Committee.  The Department’s reasons were set out in a standard form letter of 7 March 2001, stating that the application had been refused because the respondent had not shown that he had reasonable grounds for taking, defending or being a party to the proceedings.  This wording reflects that of one of the prescribed grounds for refusal of legal aid set out in Regulation 7(f) of the Legal Aid (General) Regulations (Northern Ireland) 1965.

   [6]  The Committee considered the appeal on 16 March 2001.  The respondent’s solicitors did not attend the hearing, although notified in advance of their entitlement to do so.  The Committee’s chairman, Mr Philip Dornan, stated in paragraph 6 of his affidavit sworn herein on 10 October 2001 that its conclusion was that the Coroner’s decision to adjourn the preliminary hearing was not unreasonable, “given the prospective implications of the pending decision of the European Court of Human Rights in Hugh Jordan v United Kingdom.”  By letters dated 20 March 2001 the Committee informed the respondent and his solicitors that the appeal was refused on the grounds that “you have not shown reasonable grounds for taking the proposed proceedings.”

   [7]  On 23 March 2001 Kerr J gave leave to apply for judicial review of the Coroner’s decision to adjourn the preliminary hearing.  The Committee then reviewed the matter and decided on 8 April 2001 to grant legal aid for the substantive judicial review proceedings, giving as its reason the grant of leave.  In the event Kerr J gave a decision on 23 August 2001 quashing the Coroner’s decision.

   [8]  The grounds on which the respondent sought judicial review of the Committee’s decision were twofold:

(a)	the Committee erred in law in deciding that the respondent did not have an arguable case for judicial review of the Coroner’s decision to adjourn the preliminary hearing;

(b)	the Committee failed to give reasons for its decision.

The judge held in the respondent’s favour on both heads of argument.

   [9]  On the first head the judge held in paragraphs 14 to 16 of his judgment:

“[14]	In the present case the adjudicator and the Committee had been provided with the opinion of Ms Quinlivan that the failure of the coroner to give counsel the opportunity to make submissions on why the preliminary hearing should not be adjourned constituted a breach of the rules of natural justice.  This was clear and unsurprising advice.  Whatever the views of the coroner as to the likelihood of the judgment in the European Court influencing the conduct of the inquest, he was obviously obliged to allow counsel to make submissions as to whether the preliminary hearing should proceed.  This was so as a matter of general principle.  It was particularly required, however, in this case where the inquest had been long delayed.  (As it happens when judgment was given in Jordan v United Kingdom ECtHR was critical of the inordinate delay in holding the inquest).

[15]	In approaching the question whether legal aid should be granted for the application for leave to apply for judicial review, the adjudicator and the Committee ought also to have had in mind that the applicant needed only to establish an arguable case.  In my opinion, there was no conclusion possible other than that the applicant had at least an arguable case that the coroner should have allowed argument against the adjournment.

[16]	The Committee (and presumably the adjudicator) decided that it was reasonable for the coroner to conclude that the decision of ECtHR would be helpful in deciding how the inquest should proceed.  This is undoubtedly correct but it does not meet the essential point made on behalf of the applicant in the opinion of counsel and the draft proceedings submitted to the legal aid department.  This was that the coroner should  have heard counsel for the applicant before reaching his decision.  That failure inevitably rendered the coroner’s decision susceptible to judicial review.  The applicant was certain to succeed in such an application unless it could be shown that the coroner was bound to have rejected any argument advanced against an adjournment.  Then the application for judicial review could have been refused as a matter of discretion.  But there was no material before the adjudicator or the Committee that could justify the conclusion that the court would exercise its discretion to refuse judicial review, much less that it was inevitable that it would do so.  In those circumstances, legal aid ought to have been granted.  I consider that the refusal to grant it was unreasonable and cannot be sustained.”

   [10]  Mr Morgan QC argued on behalf of the Committee that although the Coroner was in error in not giving counsel an opportunity to be heard, the circumstances were such that there appeared to be nothing which he could put forward in opposition to the adjournment, when the decision of the ECtHR was expected in a relatively short time and would obviously be likely to be material to the issues in the inquest.  He pointed out that the respondent’s advisers had not produced to the Committee any submission which counsel could have made in opposing the adjournment, and when we asked Mr Treacy to do so on the hearing of this appeal he was unable or unwilling to attempt to put forward any such argument.  In these circumstances Mr Morgan submitted that the Committee was justified in deciding that the respondent did not have an arguable case for legal aid.

   [11]  I have some sympathy for the Committee and find it difficult to see what object of any real utility was to be gained by pursuing the application for judicial review of the Coroner’s decision.  I feel impelled nevertheless to agree with the conclusion reached by the judge and with the reasons which he gave.  It is a fundamental requirement of fairness of procedure to give an opportunity to the parties affected by a judicial decision to present such submissions as they may be able to advance.  As the judge correctly pointed out in paragraph 16 of his judgment, the Coroner’s failure to do so rendered his decision susceptible to judicial review.  That would only fail if the judge exercised his discretion to decline to make an order, on the ground that the respondent’s counsel could not have put forward an argument of any substance.  The Committee may have had the strongest suspicion that that was the case, but I have to agree with the judge that they could not be sufficiently clear at that stage that it was.  In those circumstances they could not be sufficiently certain that the application for judicial review was bound to fail (as in the event it did not) and they were in my judgment in error in refusing legal aid.

   [12]  This conclusion is sufficient to dispose of the appeal before us, but because the issue of the requirement for the Committee to give reasons was argued before us and the Committee was anxious to have a ruling on it, I think that I should express my opinion on it.  I am conscious of the fact that the administration of legal aid is due to change fundamentally in the near future when the Legal Services Commission takes it over, but it may be of some assistance to the Committee and in due course to the Commission to rule on the issue.

   [13]  On this issue the judge expressed his conclusion at paragraph 17 of his judgment:

“I am satisfied that reasons for the decision of the adjudicator and the Committee ought to have been given in this case.  I accept that the legal aid authorities are not under a duty to give reasons in every case and that it is open to them to adopt a policy of generally not giving reasons.  In the present case, however, there was a strong and, as it proved, correct opinion from counsel in favour of the grant of legal aid.  Both the adjudicator and the Committee failed to appreciate the significance and effect of that opinion.  These factors removed this case into that exceptional category that required reasons to be given.”

   [14]  The starting point for consideration of the requirement to give reasons has to be the decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531.  In a classic passage in his opinion Lord Mustill set out at page 560 a series of general propositions relating to fairness, the opportunity to make representations and the duty to give reasons:

“What does fairness require in the present case?  My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment.  They are far too well known.  From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.  (2)  The standards of fairness are not immutable.  They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3)  The principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  (4)  An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.  (5)  Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result or after it is taken, with a view to procuring its modification; or both.  (6)  Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

He also said at page 565:

“To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray.  I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed.”

   [15]  In R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 256-7 Sedley J set out a number of factors which might determine whether reasons are required in an individual case:

“The giving of reasons may among other things concentrate the decision-maker’s mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result that the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process.  On the other side of the argument, it may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge.  It is the relationship of these and other material considerations to the nature of the particular decision which will determine whether or not fairness demands reasons.”

   [16]  I had occasion, when sitting in the Queen’s Bench Division in Re Oliver’s Application [1995] NIJB 117 to address this issue in relation to a decision of the Legal Aid Committee.  I reviewed the authorities up to that time and stated my view at pages 122-3:

“In considering this issue I start from the position that the legislation governing legal aid in Northern Ireland does not require the Legal Aid Committee to given reasons for its decisions.  That is not in my view conclusive, but it points towards a conclusion that in the ordinary way one would not expect it to be obligatory for the Committee to furnish reasons for its decisions.  It seems to me that it will depend on the nature of the issues before the Committee whether reasons will ever be required.  In the present case, to which I shall limit my ruling, the grounds on which the applicant relied in his appeal to the Committee appear with sufficient clarity from the documents which he submitted.  When the Committee dismissed his appeal, it was rejecting his submission on each of those grounds.  The applicant and the court are quite well able without receiving more details to examine each submission and to decide if the Committee has applied the law correctly or fallen into error in rejecting it.

In a case such as the present, accordingly, where the issues canvassed before the Committee are matters of law, and those have been identified through the applicant’s written or oral representations, it does not seem to me to be necessary for the Committee to set out its reasons seriatim for holding against the applicant.  Such a case is not one where the laconic refusal of an application or dismissal of an appeal presents an inscrutable mask behind which one cannot see.  It is possible to look at each of the issues and see whether the Committee’s conclusion on it can be justified.  The same may no doubt be said in very many other cases where the issue is whether there is any prospect of success on the facts put before the Committee.  One might suppose that cases could arise where an appellant was left in the dark about the Committee’s reasons because it decided on a ground which had not been the subject of any submission or discussion, but such cases can be left for decision if they should arise, and I decline to lay down any general proposition.”

   [17]  To these statements of the law must now be added the observations of the Privy Council in Stefan v General Medical Council [1999] 1 WLR 1293.  In giving the opinion of the Board Lord Clyde stated at pages 1300-01:

“The trend of the law has been towards an increased recognition of the duty upon decision-makers of many kinds to given reasons.  This trend is consistent with current developments towards an increased openness in matters of government and administration.  But the trend is proceeding on a case by case basis (Reg v Kensington and Chelsea Royal London Borough Council, Ex parte Grillo (1995) 94 LGR 144), and has not lost sight of the established position of the common law that there is no general duty universally imposed on all decision-makers.  It was reaffirmed in Reg v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 564, that the law does not at present recognise a general duty to give reasons for administrative decisions.  But it is well established that there are exceptions where the giving of reasons will be required as a matter of fairness and openness.  These may occur through the particular circumstances of a particular case.  Or, as was recognised in Reg v Higher Education Funding Council, Ex parte Institute of Dental Surgery [1994] 1 WLR 242, 263, there may be classes of cases where the duty to give reasons may exist in all cases of that class.  Those classes may be defined by factors relating to the particular character or quality of the decisions, as where they appear aberrant, or to factors relating to the particular character or particular jurisdiction of a decision-making body, as where it is concerned with matters of special importance, such as personal liberty.  There certainly is a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions.  But the general rule has not been departed from and their Lordships do not consider that the present case provides an appropriate opportunity to explore the possibility of such a departure.  They are conscious of the possible re-appraisal of the whole position which the passing of the Human Rights Act 1998 may bring about.  The provisions of article 6(1) of the Convention of Human Rights, which are now about to become directly accessible in national courts, will require closer attention to be paid to the duty to give reasons, at least in relation to those cases where a person’s civil rights and obligations are being determined.  But it is in the context of the application of that Act that any wide-reaching review of the position at common law should take place.”

He added significantly at page 1301 that –

“What will suffice to constitute the reasons is a matter distinct from that obligation to give reasons, and there can clearly be circumstances where a quite minimal explanation will legitimately suffice.”

   [18]  It is apparent from paragraph 7 of Mr Dornan’s affidavit of 10 October 2001 that the standard practice of the Committee is not to furnish reasons for its decisions, but simply to repeat the words of Regulation 7(f), and he does not specify any exceptions to this practice.  As I stated in Re Oliver’s Application, such a blanket rule cannot be justified and there are some cases in which it is necessary that the Committee should give reasons.  In the present case counsel’s opinion on the prospects of success in the judicial review application simply stated that a decision made without hearing representations is erroneous, a proposition which the Committee could not and did not dispute.  The only ground on which it could have refused legal aid was that the judge would nevertheless in the exercise of his discretion reject the application, because there was no sustainable reason which counsel could have put forward against an adjournment.  Although the respondent’s advisers may have understood this perfectly well, I am inclined to agree with the judge that the ground on which the refusal was made should have been specified, however succinctly, by the Committee.  I would therefore on balance regard the failure to give reasons as unjustified.

   [19]  For the reasons which I have set out I would dismiss the appeal.

Nicholson LJ.  I agree.

Coghlin J.  I agree.