Prior authority for senior counsel in High Court

and Family Care Centre litigations

A NILSC consultation

July 2006

1. Introduction

Law Centre (NI) is a non profit provider of legal services to advice agencies in Northern Ireland and to disadvantaged individuals. The Law Centre provides a specialist legal service (advice, representation, training, information and policy comment) in four areas of social welfare law: immigration, social security, community care and employment law and we are due to launch a mental health legal advice and representation service in October 2006.

Legal advice and information services are provided to almost 500 member agencies.  Members include local Citizens Advice Bureaux, independent voluntary sector advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic and community based organisations.

2. Arrangements for scrutiny of applications for senior counsel in the High Court

We support the proposals to introduce effective scrutiny before granting senior counsel in the High Court.  The issue raises an access to justice on two fronts.  First, will those who currently receive assistance from two counsel and who may now only receive assistance from one counsel suffer?  Second, could money be saved from more effective scrutiny of the need for senior counsel be more effectively targeted at tackling legal disadvantage elsewhere.  We are reassured that access to senior counsel will still be available in cases where proceedings raise a complex, novel or unusual issue or have a public interest element.  This largely answers the first access to justice issue raised earlier in the paragraph.  The High Court jurisdiction remains at £15,000 compared to £50,000 in England and Wales.  It is difficult, for example, to see any justification for automatic granting of senior counsel for a routine personal injury case worth £25,000.  We think that bringing Northern Ireland in line with England, Wales and Scotland on this matter is justified.    

The majority of Law Centre cases involve representation before tribunals, nonetheless, we have substantial experience of litigation in the High Court and Court of Appeal, mostly in judicial review actions. We have worked with both junior and senior counsel over the years and acknowledge the contribution made by both on behalf of clients. The issues raised in judicial review actions are often of a strategic and complex nature and the skills and experience of senior counsel have been invaluable in some of our cases. It is important that those who are litigating in public law cases as applicants against a state body are able to access appropriately skilled barristers.  We are working on the assumption that the definition of public interest cases will cover the type of strategic test casework done by the Law Centre.

The draft guidelines on requests for approval to engage senior counsel in the High Court appear to cover the relevant factors which should be taken into account by the Commission.

We particularly welcome the inclusion of a strong public interest element as a relevant factor in decision making.

Arrangements for emergency decisions on the need for senior counsel in urgent judicial review actions should be in place as there may be insufficient time to complete a form in detail prior to authorisation.