JMM v Legal Services Agency HC Auckland CIV-2010-485-1306
[2011] NZHC 802
•1 July 2011
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF APPELLANTS.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-1306
UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 22 June 2010
BETWEEN JMM Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1375
AND UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 30 June 2010
BETWEEN GLS Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1630
AND UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 6 August 2010
JMM v LEGAL SERVICES AGENCY HC WN CIV-2010-485-1306 1 July 2011
BETWEEN SJL Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1740
AND UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 12 August 2010
BETWEEN MSB Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1961
AND UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 10 September 2010
BETWEEN DAW Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-2527
AND UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 22 November 2010
BETWEEN BDR Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1559
AND UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 22 July 2010
BETWEEN LEGAL SERVICES AGENCY Appellant
ANDDMW Respondent
Hearing: 27 June 2011
Counsel: S M Cooper and K R Ross for appellants
F M Cooke QC and F A Gush for respondent/cross-appellant
Judgment: 1 July 2011
CIV-2010-485-1630
UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 6 August 2010
BETWEEN SJL Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1740
UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 12 August 2010
BETWEEN MSB Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1961
UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 10 September 2010
BETWEEN DAW Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-2527
UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 22 November 2010
BETWEEN BDR Appellant
ANDLEGAL SERVICES AGENCY Respondent
CIV-2010-485-1559
UNDER the Legal Services Act 2000
IN THE MATTER OF an appeal from a decision of the Legal Aid
Review Panel dated 22 July 2010
BETWEEN LEGAL SERVICES AGENCY Appellant
ANDDMW Respondent
Hearing: 27 June 2011
Counsel: S M Cooper and K R Ross for appellants
F M Cooke QC and F A Gush for respondent/cross-appellant
Judgment: 1 July 2011
RESERVED JUDGMENT OF DOBSON J
The context
[1] This judgment determines two applications for leave to appeal to the Court of Appeal from decisions of mine on appeal from the Legal Aid Review Panel (the Panel).
[2] The first application for leave is brought on behalf of six recipients of legal aid to pursue historic abuse cases where the grants of their aid have subsequently been withdrawn. In a combined judgment dealing with eight cases (seven appeals by recipients of aid and one by the Legal Services Agency (the Agency)), delivered on
14 April 2011, I found that errors had been made by either or both of the Agency and the Panel in all cases. In four of the seven appeals brought on behalf of recipients of aid, I referred the cases back to the Agency for reconsideration in light of the terms of my judgment and others that are relevant to the matter. I decided that no relief was warranted in the remaining three appeals. In six cases, the recipients now seek leave to appeal, with most of them seeking to argue all or most of 10 questions that are claimed to be questions of law arising from my judgment. Those 10 questions seek to challenge virtually all the points on which my judgment reached conclusions contrary to the position of the recipients of aid.
[3] The Agency has also applied, by way of application for leave to cross-appeal, for leave to argue three questions of law which it claims arise from the terms of my judgment, with all of the questions being claimed to be of general or public importance.
[4] In late 2007 and during 2008, four claimants (pursued in three sets of proceedings) were all unsuccessful in substantive proceedings claiming damages for historic abuse. In addition, two applications for leave to bring proceedings out of time brought by historic abuse claimants were unsuccessful.1 In light of the outcomes in those substantive cases and applications for leave to bring proceedings out of time, the Agency has undertaken a reconsideration of existing grants made to
historic abuse claimants.
1 Those cases are cited at [2]-[3] of my judgment - JMM v Legal Services Agency HC Wellington
CIV-2010-485-1306, 14 April 2011.
[5] The process for considering withdrawal of legal aid for claimants in historic abuse cases, and for reviewing Agency decisions in such cases, has now been thoroughly litigated in appeals to the High Court. I dealt with appeals brought by the Agency against 16 decisions by the Panel, all of which had reversed decisions taken by the Agency to withdraw legal aid, in August 2009.2
[6] Next, Wild J delivered judgment in April 2010 in two further appeals brought by the Agency against Panel decisions to reinstate aid in other historic abuse cases where the Agency had withdrawn aid.3
[7] Then in December 2010, Joseph Williams J issued a judgment in respect of four applications for aid to pursue historic abuse claims that had been declined when first made.4 Most recent are the eight present appeals, in respect of seven of which leave is sought to further appeal.
[8] The consistent approach in all these judgments has been a requirement that the Agency give individual consideration to the circumstances of each case, and that any decision to withdraw aid be the subject of reasons dealing with the individual case.
[9] Section 60 of the Legal Services Act 2000 (the Act) provides that ss 144 to
144B of the Summary Proceedings Act 1957 are to apply to applications for leave to appeal to the Court of Appeal. Section 144(2) of the Summary Proceedings Act
1957 provides that this Court may grant leave if it is of the opinion that a question of law involved in the appeal is one which, by reason of its general or public importance, or for any other reason ought to be submitted to the Court of Appeal for decision. In Waller v Hider, the Court of Appeal held that the question must be one capable of bona fide and serious argument and that, in the end, the guiding principle
must be the requirements of justice.5
2 Legal Services Agency v LAE HC Wellington CIV 2009-404-3399/3400/3401, 6 August 2009.
3 Legal Services Agency v W HC Wellington CIV-2009-485-2191, 21 April 2010.
4 Legal Services Agency v Lange HC Wellington CIV-2010-404-2364, 22 December 2010.
5 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
[10] An affidavit updating the position in respect of the Agency’s reconsideration of legal aid for all historic abuse claimants has been filed since my present judgment. In that affidavit, Mr Howden, a senior national specialist adviser with the Agency, has deposed that, as at 18 May 2011, there are not less than 520 unresolved cases involving grants of legal aid for historic abuse claims. The Agency has considered the prospect of withdrawing aid in 493 cases, and aid has been continued in whole or in part, either by the Agency or as a result of directions from the Panel, in 145 cases. In addition, applications for review by the Panel of Agency decisions have been pursued in some 350 cases. Mr Howden’s affidavit also described the extent of the costs to the Agency of funding historic abuse claims. The four unsuccessful substantive proceedings in 2007 and 2008 involved costs of some $1.434 million. Since then, as a result of aid being reinstated, two further cases have gone to trial involving total costs of some $482,000. Again, neither case was successful.
[11] In six other cases where the Agency has funded applications for leave to proceed out of time, or opposition to defendants’ strike out applications, legal aid costs have totalled just short of $159,000. Again, all those cases resulted in failures for the plaintiffs. Mr Howden made the rather gloomy projection that applying the average of the legal aid costs committed to the substantive cases thus far to the remaining 520 cases concerned would involve a little short of $90 million in legal aid.
[12] A legal executive with Cooper Legal, Ms Parker, has responded to Mr Howden’s affidavit by an affirmation dated 30 May 2011. That affirmation protests that the costs cited by Mr Howden must include the Agency’s own costs incurred in reconsidering grants of aid, and responding to the Panel when its own decisions were being reviewed. Further, that Mr Howden had not acknowledged amounts paid in reimbursement to the Agency as Cooper Legal has achieved settlements out of court of “just short of 80” historic abuse claims. Ms Parker states that since January 2008, Cooper Legal has paid to the Agency “just short of
$700,000” out of settlements, and that that figure will rapidly rise as settlements that are pending are concluded.
[13] Ms Parker’s affirmation also made the point that the lack of success with all the cases which have been litigated has to be off-set by the substantial success rate with settlements, including some in the cases where litigation was unsuccessful.
[14] Given the volume of historic abuse claims, and the extent of the ramifications for all those who have to deal with them, there was a measure of consensus between counsel that questions framed in ways that had general application to all such cases were likely to have a requisite measure of general or public importance.
The questions
[15] The questions on which the appellants sought leave to further appeal were expressed as criticisms of my judgment in the following terms:
[…that the Court:]
1.1In respect of each appellant, applied the wrong test for prospects of success, in terms of s 9(4)(d)(i) Legal Services [Act] 2000;
1.2In respect of each appeal, failed to adequately consider the relevance of a number of successful settlements within the litigation context to the question of prospects of success;
1.3In respect of GLS, SJL, MSB, DAW and BDR, failed to find that the more thorough analysis required to be undertaken by the Courts of expert Limitation Act evidence necessitated updating that evidence, in order to properly assess prospects of success;
1.4In respect of GLS, SJL, MSB, DAW and BDR, failed to find that a psychiatrist having access to a greater level of records could alter the core of the underlying analysis;
1.5In respect of GLS, SJL, MSB, DAW and BDR, misapplied the test and/or applied the wrong test for reasonable discoverability;
1.6In respect of SJL, MSB and BDR, misapplied the test and/or applied the wrong test for disability;
1.7In the case of JMM, failed to adequately consider that JMM was given inadequate opportunity to address Limitation Act issues;
…
1.9The judgment erred in the cases of JMM […] in failing to direct a reinstatement of legal aid for the purpose of obtaining a psychiatric report;
1.10The judgment erred in the cases of DAW and SJL in failing to direct a reinstatement of legal aid;
1.11 The judgment erred in the cases of GLS, MSB and BDR in failing to direct either a reinstatement of legal aid or a reconsideration.
[16] I have omitted 1.8 as proposed because it related to a possible appeal in proceedings which are no longer pursued. I have also deleted reference to that appeal from 1.9 as originally phrased.
[17] This series of challenges is framed as grounds of appeal from my judgment, rather than as questions of law arising out of determinative reasoning in it. The Agency accepted that reworded and somewhat abstracted questions arising out of some of these grounds of challenge could constitute appropriate questions for the granting of leave. However, in the form the challenges were advanced, they were opposed as being too specific, too fact-dependent and more in the nature of grounds for a general appeal than suitable as questions of law having any general or public importance.
[18] In a Memorandum filed for the Agency the week before argument on the leave applications, Mr Cooke QC proposed a form of question which he suggested would capture the essence of those parts of the earlier challenges raised on behalf of the appellants, and which the Agency would accept constituted a question of law of general or public importance. He framed the question as follows:
Whether the High Court erred in the cases of GLS, MSB and DAW in concluding that it was open for the [Agency] to make the decision to withdraw legal aid in accordance with ss 26(2)(a) and 9(4)(d) of the [Act] given the extent of the analysis of those cases conducted by the [Agency].
[19] Because there is an element of complementarity about the questions on which the Agency sought leave, it is appropriate to also set those out at this point. They were:
(1) Whether the High Court erred in holding that the [Agency] committed an error of law, or made a manifestly unreasonable decision, when it failed to engage in a case specific analysis of the kind identified by the Court before deciding to withdraw legal aid in accordance with ss26(2)(a) and 9(4)(d) of the [Act], and whether the [Agency] had failed to conduct the required level of analysis in the
cases where the Court has allowed the appeal and ordered the
[Agency] to reconsider its decision;
(2) Whether in light of the [Agency’s] duty to give reasons for its decision under s27(2)(b) of the Act, the High Court erred by proceeding on the basis that the level and intensity of the case specific analysis conducted by the [Agency] is set out in the letter communicating the [Agency’s] decision; and
(3) Whether the High Court was right in finding that [the Panel] erred in assessing the [Agency’s] withdrawal decisions on the basis of the analysis of the case provided in the [Agency’s] submissions to it relating to the individual cases, rather than confining it to the analysis described in the letter withdrawing aid.
Appellants’ question one
[20] The first ground raised for the appellants relates to the test I applied in assessing their prospects of success. Under s 9(4)(d)(i) of the Act, a ground for refusing to grant legal aid, or on consideration of withdrawal of a grant of aid under s 26 of the Act, the Agency may do that if it decides that an applicant’s prospects of success are not sufficient to justify the grant of legal aid.
[21] In [15] to [18] of my judgment, I reviewed earlier decisions on the evaluation of “prospects of success”, recognising that depending on context, this could amount to an assessment not just of how likely it is that the claimant would succeed. I observed:
In appropriate cases, [the evaluation] may take into account factors beyond an evaluation of the cost of proceeding relative to the prospects of success and the likely extent of financial success, but those core considerations are likely to dominate the evaluation in most cases.
[22] By reference to the outcomes on a number of the appeals where I decided granting relief would be futile notwithstanding an error of law being established, the appellants now wish to argue that I have applied an incorrect test for the prospects of success.
[23] That test is critically important to decisions on the continuation of aid. The appellants could raise a bona fide argument that I have postulated a test for the prospects of success that is wrong when dealing with appeals in relation to grants of
aid for historic abuse claims in my analysis of the test in [15] to [18] of my judgment.
[24] Accordingly, I grant leave for a version of the first ground raised on behalf of the appellants, recast as a question in the following terms:
Did the High Court err in applying a test as to the prospects of success for the purposes of s 9(4)(d)(i) of the Legal Services Act 2000, inconsistently with the test contemplated by that section?
Appellants’ question two
[25] The second ground sought to be argued for the appellants related to alleged errors in my approach to the existence of settlements of historic abuse claims, that have occurred notwithstanding that claimants had not made out that they could avoid the impact of Limitation Act defences. After considering Ms Cooper’s written argument and hearing extensive oral submissions from her, I discern two criticisms she would seek to advance on a further appeal. First, that the prospects of success in litigation ought to have regard to the preparedness of the defendant in the claims against the former Department of Social Welfare to conclude settlements involving payment of meaningful sums, irrespective of whether the claims would have been blocked in Court by invoking Limitation Act defences. Secondly, that it was wrong for the Court to in any way validate or encourage the Agency to deal with claimants where avoidance of the Limitation Act defences seemed unlikely, only on the alternative basis that they be given funding for alternative dispute resolution (ADR) initiatives.
[26] Both notions are misconceived.
[27] As to the first point, it is illogical to expect the Agency to assess the prospects of success in litigation where defendants appear to have a valid defence under the Limitation Act, by ignoring that influence on the litigious outcome because, for the purposes of settlement negotiations, the defendant is prepared to discuss a settlement that does not take the defence into account. That situation contemplates a non- litigious form of success and it becomes appropriate to consider the prospects of aid for steps other than in pursuit of the litigation.
[28] Ms Cooper was insistent that settlements have only been achieved because the claimants commenced proceedings that forced the defendant to deal with them. That is no longer the position. Ms Parker’s affirmation exhibited an informal agreement between the Ministry of Social Development and Ms Cooper’s firm that recorded an agreement to suspend the running of time for Limitation Act purposes. The process it contemplates does not require, and arguably discourages, pursuit of Court proceedings.
[29] Certainly, that position does not pertain to claims against psychiatric institutions, but there is a prospect they may follow suit (which Ms Cooper alluded to), and the Agency’s primary responsibility when dealing with an application to fund litigation is to assess the prospects of success in the litigation.
[30] Ms Cooper cited the decision in Legal Services Agency v Black,6 purportedly for the proposition that the Agency could not, part way through administering a grant of aid for proceedings, transform the grant from one for pursuit of the proceedings, into one providing ADR funding. The observations on this point7 reflected rejection of an argument that had been advanced on behalf of the Agency, to the effect that as each grant for a stage of proceedings came to an end, the legally aided litigant was obliged to apply, effectively de novo, for a further grant in respect of the next stage. It was in that context that her Honour observed:8
It makes no sense for a grant to be made that envisages only the institution of proceedings but not the continuation of those proceedings to some logical conclusion.
[31] Her Honour immediately continued:
That is not to say that circumstances may not change necessitating a change to the funding approach; or that developments in the course of litigation may not militate in favour of settlement rather than trial.
[32] That decision supports the proposition that the Agency cannot change the basis on which it makes a grant of legal aid without a material change in
circumstances, but it is not authority for the proposition that where the Agency has
6 Legal Services Agency v Black HC Auckland CIV-2004-404-2561, 14 October 2005.
7 At [47]-[48].
8 At [48].
identified a material change of circumstances, it would nonetheless be impermissible for it to invite an application for aid on a different basis from that which had pertained originally.
[33] The present argument for the appellants misconceives both the relevance of the prospect of settlements, and the legality of the Agency’s response to changing prospects in that regard. I am satisfied that no question of general or public importance can be crafted out of my judgment on this topic.
[34] On the second point, by the time the appeals were argued before me, funding for ADR purposes was a viable alternative and one that the Agency acknowledged it was prepared to consider in those cases where it would otherwise withdraw aid completely.
Appellants’ questions three and four
[35] The third and fourth grounds both relate to the adequacy of the expert psychiatric evidence that the Agency ought to have before it, in order to make a lawful decision on whether to withdraw aid. On a number of the appeals, the appellants complained that they ought to have been afforded the opportunity to procure updated psychiatric reports before responding to the Agency’s proposal that aid might be withdrawn. In addition, the appellants wished to challenge my view about the extent of utility that might be expected from an updated report.
[36] The terms in which both grounds are advanced were highly case-specific. At a more abstracted level, they more or less fit within the alternative question proposed from the appellants’ perspective, on behalf of the Agency.
[37] Ms Cooper opposed the formulation of that question as unduly constraining. There are discrete issues of the adequacy of psychiatric reports, and the extent of the Agency’s case-specific analysis. The alternative question posed on behalf of the Agency as a substitute from the appellants’ perspective tends to reflect the other side of one of the relatively broad issues that the Agency itself wishes to advance, namely the extent to which the Agency is required to undertake a case-specific analysis in
every individual case. Mr Cooke was inclined to accept that it could extend to the adequacy of psychiatric reports. It is preferable that that notion be made specific as a sub-set of the question. I accordingly grant leave for an amended form of the Agency’s formulation of the question, in substitution for grounds three and four as sought to be argued for the appellants. Accordingly:
Whether the High Court erred in the cases of JMM, GLS, MSB and DAW in concluding that it was open for the [Agency] to make the decision to withdraw legal aid in accordance with ss 26(2)(a) and 9(4)(d) of the [Act] given:
(a) the extent of the psychiatric reports and/or evidence in relation to the applicant for aid;
(b) the extent of the analysis of those cases conducted by the [Agency].
[38] This reformulation adds JMM to the appeals identified in the form of question. I have done so to cater for an issue arising under the appellants’ question seven, as addressed below.
Appellants’ questions five and six
[39] The fifth and sixth grounds sought to be argued for the appellants purport to challenge the formulation of the tests for reasonable discoverability and disability, and to advance argument that I have wrongly applied the tests for those two potential grounds for avoiding the Limitation Act defence.
[40] The detail of Ms Cooper’s arguments on these topics illustrated that they would focus on how I analysed the prospects of each of the appellants avoiding the Limitation Act defence, on either or both of absence of reasonable discoverability, and the existence of a disability. The tests for those concepts as they would apply in the substantive proceeding are tolerably well settled. The preponderance of the arguments sought to be advanced are challenges to the view I have taken on factual matters. I do not see either question can be reformulated in a way that would constitute a question of law of general or public importance.
Appellants’ question seven
[41] This ground of challenge to my judgment was specific to the case of JMM, and to the view I took of the adequacy of the opportunity afforded to JMM to address prospects for avoiding the Limitation Act defences. It is a narrow and essentially fact-dependent issue. It is raised in respect of one of the appeals in which I found errors by both the Agency and the Panel, and have granted relief by directing the Agency to reconsider JMM’s entitlement to aid.
[42] Any more general point on the adequacy of the opportunity to address Limitation Act issues is sufficiently addressed in the context of the reformulated question for the appellants’ third and fourth grounds, as I have proposed. To enable the circumstances in JMM’s case to be illustrative, I have added that to the cases in the reformulated question in [37] above.
Appellants’ questions nine to eleven
[43] The ninth to eleventh grounds sought to challenge the exercise of my discretion on the nature of relief that might follow from a finding that there had been an error of law by either or both of the Agency and the Panel. The relief that had been sought was that the Court order reinstatement of aid on some terms. Instead, I have directed reconsideration by the Agency of its decisions to withdraw aid.
[44] In oral argument, Ms Cooper acknowledged that she hoped to short-circuit the process because she described the prospect of starting again with the Agency as “wearying beyond belief”. She urged that, given the relatively basic nature of mistakes made repeatedly by the Agency, the Court’s discretion ought to be exercised in a way that most assisted the progress with the substantive proceedings.
[45] However, to the extent that the appeals succeeded in establishing errors of law, those successful arguments did not aspire to make out in positive terms that the outcome before the Agency ought to have been a continuation of the grant of aid. In none of the appeals was I required to form the view that a continuation of aid was justified. Nor was any argument addressed on the terms on which that might occur.
[46] In those circumstances, I do not consider that any question of law can be defined that would address points of general or public importance on how the Court ought to exercise its discretion in the event that it finds errors of law have been established.
[47] I am accordingly satisfied that grounds could not be made out for leave to appeal on the topics addressed by the ninth to eleventh grounds.
Application for leave to cross-appeal: questions pursued on behalf of the
Agency
[48] Ms Cooper opposed each of the three questions on which the Agency sought leave. She argued that none of the questions raise an issue that was capable of serious or bona fide argument. On the first question, raising the extent of the requirement for the Agency to undertake a case-specific analysis before withdrawing aid, she cited a series of High Court decisions going back to 2004, in which the
obligation for a case-specific analysis has consistently been required.9 That
proposition, as applied generally to consideration of the entitlement to legal aid, has subsequently been applied consistently in the cases dealing with historic abuse claims.
[49] As to the second question, intended to address the extent of reasons for a decision by the Agency that are required to be set out in its letter communicating that decision, Ms Cooper submitted that anything less than an identification of the grounds relied on was not seriously arguable because of the impact of the decisions on the rights of legally aided persons to access justice, and the importance of assessing the prospects for challenging such a decision.
[50] As to the third question, to the extent it introduced the prospect of the Agency supplementing the justification for a decision to withdraw aid by raising new matters in submissions to the Panel, Ms Cooper submitted that such notion could not be
seriously arguable because it offended against the rules of natural justice, and would,
9 Legal Services Agency v K HC Christchurch CIV-2004-404-2675, 5 November 2004; Legal Services Agency v Hosseini (2006) 17 PRNZ 932; Martin v Legal Services Agency HC Auckland CIV-2006-404-7251, 6 August 2007; Chatha v Legal Services Agency (2005) 17 PRNZ 705.
if accepted, give rise to the prospect of successive iterations of arguments and therefore gross inefficiencies, in the course of reviews before the Panel.
[51] It was implicit in Ms Cooper’s argument that, to the extent questions on these topics did raise seriously arguable questions of law, then they would be questions of general or public importance, given the importance she attributes to resolution of the entitlement to legal aid in the very large number of historic abuse claims still to be dealt with.
[52] I do not consider it fatal that the Agency has not challenged decisions on the extent of case-specific analysis required of it, before now. It may well be that the Agency has been prepared to try to work consistently with earlier judgments addressing this topic, but that sufficient iterations have now occurred for it to want to test the requirement for the level of case-specific analysis provided for in my judgment, against the current context of consistent lack of substantive success in any of the historic abuse claims. The proposition that, in the circumstances now pertaining, less case-specific analysis would be adequate is capable of bona fide argument.
[53] Accordingly, I am satisfied that leave should be granted on the first of the questions that the Agency wishes to pursue on further appeal.
[54] The second question sought to be argued on behalf of the Agency raises the extent of the requirement imposed on it to provide reasons for any decision to withdraw aid, as required to be notified to the aided person under s 27(3)(b) of the Act. Mr Cooke would wish to argue that the Agency ought not to be held to account as to the extent of analysis it has undertaken, only by reference to the level of detail set out in the letter communicating the Agency’s decision to withdraw aid.
[55] On one view, this question is a relatively narrow one. The Agency could not avoid the requirement to spell out reasons for a withdrawal decision, otherwise it would breach the statutory obligation under s 27(3)(b) of the Act. The extent of detail in which a particular reason or series of reasons needs to be addressed in the letter for it to adequately inform the aided person will vary according to the
circumstances of each case. So, too, will the distinction between supplementary detail of a ground that is adverted to, and the introduction of a discrete ground also vary from case to case.
[56] Were this question to be raised on its own, then I may have been inclined to deny it standing as one that was capable of serious argument in the context of my decision. However, it raises an issue about the extent of the Agency’s process, coming between the issue raised in question 1 as to the extent of case-specific analysis required, and question 3 which raises the scope of the Agency’s entitlement to make submissions to the Panel when the Panel is dealing with an application for review of the Agency’s decision. In that context, the extent of the obligation on the Agency to reflect the reasons for a withdrawal decision when communicating the decision to the legally aided person does assume a measure of importance. The sequence of the Agency’s responsibilities and obligations when making its own decision, and subsequently when defending it before the Panel, is better addressed with this question posed in the middle.
[57] Accordingly, I grant leave for the Agency to argue its second question.
[58] In its third question, the Agency seeks to argue for the liberty to put to the Panel matters in support of a decision to withdraw aid that go beyond the reasons set out in the notification of the Agency’s decision to withdraw aid.
[59] I anticipate that in more usual contexts, there would be very limited scope for the Agency to seek to justify attempts to raise new arguments before the Panel that had not influenced the Agency’s own decision, and been conveyed to the legally aided person whose grant had been withdrawn. As Ms Cooper argued, the notion of the introduction of new grounds would, in most situations, risk offending the rules of natural justice, or at the least would require the Panel to entertain an inefficient sequence of submissions, counter-submissions and replies to enable an adequately informed response to be made on behalf of the previously aided person.
[60] However, within the Agency’s administration of grants for historic abuse
claims, the volume of its reconsiderations and the iterative process caused by the
sequence of Panel and High Court decisions have made it unrealistic to expect the parties to be confined to the “state of play” as it was at the time the Agency made and communicated the reasons for its decision, when presenting arguments to the Panel. In this unusual sequence of reconsiderations of the Agency’s decisions, there may be situations in which it is at least arguable that the Agency ought to present a view to the Panel that takes account of matters arising after the decision being reviewed was made by it. The third question posed on behalf of the Agency could address those circumstances, without addressing the more general situation where matters can adequately be considered by the Panel without the need to have regard to relevant developments since the Agency’s decision.
[61] Accordingly, within the context of the evolving consideration of historic abuse claims, I accept that the third question does raise a question of law capable of serious argument, and which is of general or public importance. To ensure that the argument is confined to the factual circumstances in which progressive consideration of additional cases within the same category gives rise to an evolving view about the appropriate process that the Agency should follow, I intend to have that factor reflected in the question by expanding the second line in the following way:
…erred in assessing the [Agency’s] withdrawal decision in relation to grants for historic abuse claims on the basis …
Summary
[62] I grant leave to the appellants to argue on further appeal to the Court of
Appeal the following questions:
(a) Did the High Court err in applying a test as to the prospects of success for the purposes of s 9(4)(d)(i) of the Legal Services Act 2000, inconsistently with the test contemplated by that section?10
(b)Did the High Court err in the cases of JMM, GLS, MSB and DAW in concluding that it was open for the Agency to make the decision to
10 At [24] above.
withdraw legal aid in accordance with ss 26(2)(a) and 9(4)(d) of the
Act given:
(i)the extent of the psychiatric reports and/or evidence in relation to the applicant for aid;
(ii) the extent of the analysis of those cases conducted by the
Agency?11
[63] I also grant leave to the Agency to argue in the Court of Appeal the three questions, in the terms proposed by it as recorded in [19] above, subject to the third question being recast to the following extent:12
Was the High Court right in finding that the Panel erred in assessing the Agency’s withdrawal decision in relation to grants for historic abuse claims on the basis of the analysis of the case provided in the Agency’s submissions to it relating to the individual cases, rather than confining it to the analysis described in the letter withdrawing aid?
[64] There is no issue as to costs.
Dobson J
Solicitors:
Cooper Legal, Wellington for appellants
Legal Services Agency, Wellington
11 At [37] above.
12 At [53], [57] and [61] above.
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1
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