High Court Quashes Decision in Martin v Legal Services Commission Case Over Legal Aid Discharge

Citation: [2007] EWHC 1786 (Admin)
Judgment on


The case of Martin v Legal Services Commission is a Judicial Review challenge regarding the discharge of a legal aid certificate shortly before the scheduled trial in educational negligence proceedings. The claimant alleged that the discharge violated Article 6 of the European Convention on Human Rights (ECHR) and the guidelines of the Legal Services Commission (LSC). The court’s decision explores the statutory framework for legal aid, the “private client test,” the “legal merits test”, the “reasonableness” test, and the impact of these on the Claimant’s access to justice under Article 6 ECHR.

Key Facts

The claimant, a dyslexic individual, alleged negligence against two local education authorities. Legal aid was granted under the Legal Aid Act 1988 for specific stages of litigation, but not for trial. Shortly before trial, the LSC discharged the certificate, citing insufficient prospects of cost recovery. An appeal was made to the Funding Review Committee (FRC), which upheld the LSC’s decision.

The legal principles discussed in this case include:

  • The Statutory Framework for Legal Aid: The case was governed by the Legal Aid Act 1988 and the Civil Legal Aid (General) Regulations 1989. These define tests for granting legal aid, such as the “legal merits test” (reasonable grounds for taking the proceedings) and the “reasonableness test” (whether it is reasonable for the person to be granted representation).

  • The ‘Private Client’ Test: This principle relates to whether legal aid would be granted in circumstances where a private client of moderate means would be advised to litigate (“the game is worth the candle”).

  • Prospect of Success: Damages had to be likely recoverable at a minimum ratio compared to the total costs (e.g., at least 1.5 times costs for “good” prospects).

  • Cost Benefit Analysis: The consideration of whether the probable award of damages justified the costs of proceeding.

  • Effective Access to Justice and Proportionality Under Article 6 ECHR: The timing of withdrawing legal aid and whether it denied effective access to justice, created inequality of arms or was disproportionate, in light of the complexity of the case and the Claimant’s dyslexia.

  • Consideration of Previously Incurred Costs: Whether it would be reasonable to continue funding legal aid where substantial costs have already been incurred, thereby assessing costs against potential recovery including costs already expended.


The High Court found deficiencies in the FRC’s approach to the “private client test” and the consideration of legal aid continuation given significant costs already incurred by the Claimant. The FRC decision was found to lack adequate reasoning regarding this critical point, leading to the conclusion that the FRC did not properly consider the substance of the impact of costs already incurred. As a result, the decision was quashed, with the court indicating a need for the issue to be reconsidered.

The High Court also clarified that the Article 6 ECHR does not necessarily require state funding for a lawyer in all civil actions where damages are sought, and that the prospects of success and the “cost benefit” are relevant considerations when determining if the refusal of legal aid amounts to an ECHR violation.


In the Martin v Legal Services Commission case, the High Court provided a nuanced examination of legal aid principles within the context of judicial review. It reaffirmed the importance of a detailed consideration of costs, both prospective and incurred, and prospects of success in decisions about the continuation of legal aid. The judgment underscored the need for clear reasoning when applying these principles, particularly when substantial costs are at play, as they bear directly on the claimant’s access to justice. This case will be a guiding one for understanding the interactions between domestic laws and ECHR obligations, especially concerning legal aid and the right to a fair trial.