Re R (Closed Material Procedure: Special Advocates: Funding)

01 Jan 2018

Public Law and Judicial Review

The High Court has provided much-needed clarity to the issue of funding for Special Advocates within Family Proceedings as part of a Closed Material Procedure conducted under the Court’s inherent jurisdiction.

In a sensitive case, the Court considered the following issues:

  1. Should the normal rule in closed material procedures apply, that is, the ‘owner’ of sensitive material should pay for the provision of Special Advocates in Closed hearings?
  2. If so, how was that to be reconciled with the facts that the police were not a party and that there is authority against making prospective orders for costs?
  3. Should the Court impose a cap on the costs that could be charged, bearing in mind that there was no provision for assessing them retrospectively?
  4. Could these costs be met by the Legal Aid Agency as exceptional funding?

In response to these issues, the Court found that:

  1. The usual rule was applied, despite argument to the effect that the local authority was responsible for bringing the proceedings and could be expected to assume the responsibility for deploying the sensitive material.
  2. The judge found that the limits of the inherent jurisdiction which he was exercising had not been defined, and that to use that jurisdiction to require the police to pay was the least worst of his options.
  3. The judge opted for unlimited liability, coupled with a call to keep costs down as much as possible. This issue was of grave concern to the Special Advocates Support Office, which instructs Special Advocates on behalf of the Attorney General, as any cap would have added to the difficulties posed by doing justice when one party does not see all of the materials.
  4. The fourth issue was not argued before the judge but had arisen in the materials before him. On the face of s.10 of LASPO it might appear that, where human rights were in play in a case, there was either a duty or a power to provide exceptional funding. As the judge found, however, on close analysis neither appeared to arise here.

Ashley Underwood QC was instructed as the Special Advocate for the father in the closed proceedings. Click here to view the judgment.

Ashley was interviewed on the implications of the judgment by LexisNexis