The right to claim legal aid is being challenged by a lawyer who feels the directions laid down in the Legal Profession & Legal Aid (Scotland) Act 2007, put legal aid out of reach of many claimants.
No prizes for guessing how it will turn out …
The Scotsman reports :
Published Date: 09 February 2009
By John Forsyth
SCOTS legal professionals have traditionally taken a pride, perverse some say, in Scots law's approach to libel and defamation.
The £200,000 in damages awarded to Tommy Sheridan in August 2006 stood out in many respects. It was the highest sum ever awarded to a pursuer. The case was argued, unusually, in front of a jury. And it has led not only to an appeal against the award by the News of the World, but also to criminal charges of perjury against Mr Sheridan and his wife, Gail.
Even at £200,000 the award was small beer compared with the millions that have in the past been paid out to defamed and aggrieved celebrities in England. Scots law has never supported the notion of punitive damages. Furthermore, it regarded injury to reputation in similar terms to the loss of an arm or a leg because of another's negligence or malice – deserving of compensation but not jurisprudential hysteria.
The overriding aim of most pursuers is always restoration of their damaged reputation by vindication in court or through a publicised settlement, rather than pursuit of a cash award. However, even that modest ambition is available only to those with the means to fund an action. Costs can run well into six figures and the risk of failure carries the prospect of paying the defender's legal costs as well. It is a gamble too far for all but the wealthiest or well-supported.
Until two years ago it was absolutely clear that legal aid would not be provided to allow the less well-off to pursue litigation, no matter how badly defamed and damaged they may have been.
For a brief moment it seemed like the door had been opened by The Legal Aid Profession and Legal Aid (Scotland) Act 2007. Section 14(1C) permits the granting of legal aid in cases involving defamation and verbal injury. All the usual tests require to be satisfied, but an additional hurdle was introduced for the pursuer to clear. The case would have to satisfy "such criteria as may be set out by the Scottish ministers in directions given to the board".
Specifically, a pursuer has to prove a) there is a significant wider public interest in the resolution of the case, or the case is of overwhelming importance to the person; and b) there is something exceptional about the person or the case such that without legal aid it would be practically impossible for the person to bring or defend the proceedings, and this would lead to unfairness.
The directions then go on to raise the hurdle to the level of a high-jump bar. It says the board "must be satisfied that the degree of exceptionality is the same as, or is approximately the same as, in the facts found in the case of Steel and Morris v United Kingdom."
Steel and Morris is the famous McLibel case in which two activists were sued in England by the McDonalds organisation following their criticisms of the nutritional value of the hamburger chain's menu and also the effects of its business practice on the environment. The case unfolded over years and spanned 313 court days in which Steel and Morris were forced to represent themselves. It was the longest trial in English legal history and the inequality between the parties led to a review of the legal aid regulations in England and Wales.
The Legal Aid Profession and Legal Aid (Scotland) Act 2007 replicated the changes in Scotland. However, the reform appears to be a legal aid optical illusion. The door looks open, but it is actually closed.
The Scottish Legal Aid Board confirms it has received three applications for legal aid in support of defamation actions since the new regulations came into force. All three have been turned down.
One of them involves a man called Danny Wilson who is attempting to sue the City of Edinburgh Council. Mr Wilson now lives in Wales, but was resident in Edinburgh between 1991 and 1998.
In 2004 he and his partner were commencing a course of IVF treatment at Shrewsbury Hospital, but on one visit were advised that they were no longer to be treated. The clinic had received a letter from Edinburgh city council social work department advising (among other falsehoods) that Mr Wilson was a convicted murderer and had served the prison element of a life sentence. That was entirely untrue.
The council later acknowledged that the information contained in the letter was incorrect and unsubstantiated.
Mr Wilson felt his reputation had been damaged in the eyes of those who had seen the letter and who had declined therefore to continue with the IVF treatment. He and his partner incurred financial loss in securing – successfully – treatment elsewhere.
His lawyer, Cameron Fyfe, of Ross Harper, lodged an application for legal aid to support an action for defamation. The application was rejected. Mr Fyfe appealed. The appeal was dismissed, although the sheriff principal observed that he found the hurdles placed in the way of a successful application "extraordinary".
Last December Mr Fyfe lodged a further application for legal aid, this time to fund an action against the Scottish Government itself on the basis that the directions appended to the Legal Aid Profession and Legal Aid (Scotland) Act 2007 effectively put legal aid beyond reach and therefore unlawfully breach Article 6 (1) of the European Convention of Human Rights. Article 6(1) sets out the right to a fair and public hearing in the determination of any civil rights or obligations or of any criminal charges.
Mr Fyfe says: "The directions imposed by the government effectively make it impossible for Mr Wilson to pursue his action. Bizarrely, under the directions I doubt if even Steel and Morris would get legal aid, even though their case is supposed to be the benchmark."
A decision on the application is expected in March.