DW v The Scottish Ministers
Reference:  CSOH 151
Court: Outer House, Court of Session
Judge: Lord Wheatley
Date of judgment: 13 Nov 2009
Summary: Legal aid - Defamation - Scottish law - Availability of legal aid for claim - Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Directions 2007 and 2008
Instructing Solicitors: Drummond Miller LLP for the Petitioner; Scottish Government Legal Directorate for the Respondents
DW sought compensation from Edinburgh City Council for the Council having incorrectly informed the NHS that DW had been in prison for murder. As a consequence of this error, DW and his partner were refused NHS fertility treatment. The Council subsequently withdrew the information, but the NHS did not renew the offer of fertility treatment. DW and his partner obtained the treatment privately and received emergency legal aid to bring an action against the Council, based on negligence, and violation of Arts 6(1), 7(1), 8(1)(3)and(4) ECHR. His application for full legal aid was refused on the basis that the claim was in essence one for defamation. Under the Legal Aid (Scotland) Act 1986 (as amended), legal aid is available for defamation actions only in certain exceptional circumstances, as per the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Directions 2007 and 2008.
Whether the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Directions 2007 and 2008 were ultra vires and void.
Dismissing the action:
(1) The directions were not ultra vires. DW’s submission that under the directions no class of litigant could realistically qualify for legal aid was rejected. The directions were intended to make legal aid available only in truly exceptional circumstances: the required standard may be almost insurmountable but that was the intended effect and did not mean that granting legal aid had become impossible.
(2) The case was not truly exceptional and did not involve an important and discrete question of public law.
(3) DW had not exhausted all alternative remedies in his quest to obtain compensation.
The directions, which are in very similar terms to the guidance applying in England in Wales (see paragraphs 14 and 15 of the Lord Chancellor’s Guidance on Exceptional Funding), expressly require a “degree of exceptionality” the same as, or approximately the same as, the facts found in Steel & Morris v UK. In practice such a requirement may be, as Lord Wheatley recognised, “almost insurmountable.”