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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bale, R (on the application of) v Legal Services Commission [2002] EWCA Civ 1234 (26 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1234.html Cite as: [2002] EWCA Civ 1234

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW AND AN
EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday, 26th July 2002

1. LORD JUSTICE SEDLEY: This is an application made in person by Mr Bale for permission to appeal against Mr Justice Sullivan's judgment on 23rd April 2002. Mr Justice Sullivan refused an application by Mr Bale for permission to apply for judicial review upon its renewal following refusal on the papers by Mr Justice Stanley Burnton. What Mr Bale wanted, and still wants, was to obtain judicial review of a decision of the Legal Services Commission Funding Review Committee given on 31st October 2001 by which the committee dismissed Mr Bale's appeals against the revocation of his public funding certificates. There is also a brief lapse of time which I would not regard as a serious obstacle if the case is otherwise sustainable.
2. Mr Bale's litigation, in which he was publicly funded, was brought by him by way of four actions in the High Court. All of them arose out of the failure of one of his companies and he sued as the assignee of its debts. He had legal aid to pursue two of those actions as assignee. It was that legal aid which was revoked following investigation into Mr Bale's financial circumstances. On the assessment form Mr Bale had initially declared a monthly loan income from a friend and no other material source of income or capital. He also had routinely to sign an undertaking that he would inform the Legal Services Commission of any change in his or his partner's financial circumstances.
3. The defendants, as defendants some times do, took an interest in Mr Bale's legal aid for the purpose of trying to get it upset. They made a complaint. Following the complaint, Mr Bale was asked in April 2001 for a further declaration, on which he declared receipt in September 2000 of a lump sum of a little under £17,000 from Norwich Union by way of a loan secured on a life assurance policy together with a loan from his wife's aunt and some additional payments to his wife from her mother. The question arose why he did not disclose these things sooner. He said he was unaware of the Norwich Union policy until very shortly before he took the decision to cash it in as a loan; this was when he was sent notice of its value. When he took out the loan he meant to use it in substitution for monthly income which he then disclosed, but that failed to materialise. In particular he told the Legal Services Commission that he relied on an oral representation made to him by one of their officers, Mr Visser, in early 2000 that he could receive £18,000 a year without his legal aid being affected. It followed that he did not believe that the changed circumstances needed to be declared. The regional director was not satisfied with these and the other explanations Mr Bale gave and he revoked the certificates.
4. The funding review committee, on Mr Bale's appeal, concluded that the failure to disclose was deliberate. Mr Bale, as I understand the decision, was prepared to admit that he had not used due care and diligence to avoid initial non-disclosure and that he knew some contribution would be expected from him in the light of it. Whether that was correct or a misunderstanding on the part of the committee, Mr Bale's position then and now is that there was nothing dishonest in what he did or omitted to do. His case has always been that he was guilty, at worst, of an oversight.
5. It is necessary to bear in mind that the amount involved was substantial enough to go well above the £18,000 figure which Mr Bale had relied upon on the basis of his conversation with Mr Visser, and it was undeclared. It is right also to note that the committee's decision was arrived at after hearing oral evidence, as well as taking written submissions, from Mr Bale. The Legal Services Commission, acknowledging and responding to the service of the application for judicial review upon it, asserted that the certificates were properly and lawfully revoked for serious and substantial non-disclosure contrary to Regulation 78 of the Civil Legal Aid (General) Regulations 1989.
6. Mr Justice Stanley Burnton, on the papers, took the view that there were no grounds for judicial review because the decision letter of 31st October 2001 disclosed no error of law or irrationality in arriving at its conclusion.
7. Before Mr Justice Sullivan Mr Bale advanced further evidence, but Mr Justice Sullivan concluded:

"In all of these circumstances, far from being irrational and in breach of good faith, the decision of the Legal Services Commission is readily understandable and certainly discloses no error of law."

8. Mr Bale comes before this court with an appellant's notice which does not seek to revive the arguments advanced below. That said, he has in oral submission today travelled far more over the old ground than the new. But the new ground is short and sharp it is that Regulation 11, which the judge might be forgiven for having overlooked since it was not argued before him, reads:

"Duty of the person concerned to report change in financial circumstances

11 The person concerned shall forthwith inform the Area Director of any change in his financial circumstances which has occurred since the original assessment was made and which he has reason to believe might affect the terms on which the certificate was granted or its continuation."

9. There are in this Regulation, Mr Bale submits, two elements. First there is an obligation to inform the director of a change, but, secondly, to do so only where the change is one which the assisted person has reason to believe might affect the terms on which the certificate was granted or its continuation. Mr Bale submits in his skeleton argument that the latter element, by analogy with criminal law, involves "notions of mens rea, mental element or specific intent".
10. There is in this submission a fundamental misunderstanding. What a person believes is a question of fact. A person may factually believe something withoutany good reason and when he has, perhaps negligently, overlooked contra-indications. A person has reason to believe something only if objectively the factors are there which justify the belief. It depends, in other words, not simply on the subjective state of mind, however eccentric that might be, of the individual, but on the presence of objective grounds for the belief which he either holds or ought to have held. In the present case objective grounds existed in abundance for not believing that there had been no change capable of affecting the certificate. The objective grounds all gave reason to believe there had been such a change. The Legal Services Commission was fully entitled by its committee so to conclude. Indeed, it is difficult to see how they could have concluded anything else.
11. The point which Mr Bale now seeks to advance is not viable. It is not enough for him to say: "Whatever criticism can now be levelled in hindsight at my belief, it was a genuine belief" That may be so, but nothing in the Legal Services Commission's remit touches that possibility. What the Legal Services Commission had to consider was whether, whatever his subjective belief, there existed objectively reason to believe that there had been a material change; and that they found did exist.
12. It may be of some comfort to Mr Bale, who is understandably concerned with his good name, that it is this rather than what he feared which will have been the legal basis under Regulation 11 of the Legal Services Commission's decision. That said, it does not afford him a ground for appeal any more than his original grounds afforded a basis for judicial review. Permission to appeal will be refused.
Order: Application refused