'Fanciful' CoA ruling restricts legal aid funding for false imprisonment claims

A judge's 'fanciful' decision to restrict legal aid funding for false imprisonment claims against public authorities has been criticised by a leading lawyer.

Overturning the High Court judgment of Mr Justice Dingemans from November 2014, Lord Justice Laws sitting in the Court of Appeal held that an applicant is not eligible for funding unless they can show the authority not only acted unlawfully but also intended to act unlawfully or dishonestly.

Lawyers for Sunita Sisangia said the judgment went against fundamental constitutional principle of being able to hold public authorities to account for unlawful loss of liberty.

The dispute centred on the test for public funding against public authorities. The Legal Aid Agency (LAA) refused to fund Sisangia's claim against the Metropolitan Police on the basis that it did not meet the test under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

The test set out in LASPO is that claims against a public authority will be funded where there is a deliberate or dishonest act or omission causing harm.

The LAA eventually agreed to fund the claim but contested the judicial review of its original decision on principle to prevent further cases being eligible for funding, Sisangia's lawyers said.

The LAA argued that it was not enough to show that the police deliberately arrested the claimant. This interpretation effectively excludes all claims that do not involve allegations of dishonesty or bad faith on the part of the state, argued Hodge Jones & Allen.

Commenting on the court's decision, Sasha Barton, a partner at the firm, said the decision had far-reaching implications for access to justice and was a considerable blow for civil liberties.

'I am deeply concerned that, as a result of this ruling, it will simply not be possible for victims to bring claims against public authorities for false imprisonment, assault, and for other serious and significant breaches of their rights by public authorities, since there will be no funding available,' she explained.

'The judge's suggestion that claimants in Miss Sisangia's position could find a solicitor to represent them pro bono, under a CFA, or represent themselves as a litigant in person, is, with respect, fanciful,' added Barton.

'Due to other funding changes it is no longer possible in practical terms to fund cases under CFAs unless there is a personal injury element, which in cases like this there are not.'

Barton explained that lawyers could not represent people un-funded and that her firm intended to seek permission to appeal the decision.

'Before LASPO, cases of false imprisonment were always funded by legal aid and restricting funding so that it applies only to deliberate unlawfulness and dishonesty cases was never the stated intention of parliament,' continued Barton.

'A system where people who have been unlawfully detained, or otherwise mistreated, by the state have no means of redress is totally unacceptable.'