Thank you to Charlotte Haworth-Hird of Bindmans for the following report and attached order which clears up an important point about funding in the CoP.
We have recently acted in a judicial review regarding the availability of funding to bring Human Rights Act claims within the Court of Protection. The claim has now successfully settled but unfortunately, the Legal Aid Agency refused to publicise its concession so the Official Solicitor considered it would be helpful to do so for other practitioners.
The LAA has conceded that legal aid funding is available to P to bring a claim for damages under the Human Rights Act, within the Court of Protection, for both ongoing and historic breaches. As with funding for other HRA claims, the grant of funding would be subject to application of paragraph 22 of Part 1 of Schedule 1 of LASPO.
The background to the claim is that an application for funding was made to enable P to bring an HRA claim within existing Court of Protection proceedings in respect of breaches of her Article 5 and 8 rights. Those breaches were historic. The LAA argued that funding for such claims within the Court of Protection was outside the scope of LASPO as the wording of LASPO meant that funding was only available to bring an HRA claim within the Court of Protection for an ongoing breach. The LAA argued that P could apply for funding to bring the claim in the High Court (or County Court) but that funding would not be available to pursue the claim in the Court of Protection. This decision was upheld by the LAA on review and following the issue of proceedings, the LAA served a defence maintaining the same. However, after permission was granted by the Administrative Court , the LAA conceded that its statutory interpretation was incorrect and funding is in fact available to bring historic HRA claims in the Court of Protection.
This is a very helpful clarification given the increased costs that would be incurred if P were required in every case to issue a claim in the High Court or County Court. There will, of course, still be cases in which it would be appropriate to issue a separate claim in the County Court or High Court and funding is also available for that, subject to the appropriate means and merits tests being satisfied.