We reported in 2014 on the case of Sisangia, R (on the Application of) v Director of Legal Aid Casework  EWHC 3706 (Admin). The LAA had been interpreting para 21(4) of Part 1 Schedule 1 of LASPO to require there to be a credible allegation of dishonesty or bad faith before it would grant an application for funding to bring a challenge on the grounds of abuse of position by a public authority. This restrictive interpretation seriously limited the scope of cases that could be funded. Dingemans J held that it wasn’t the right interpretation; all that had to be shown was that the act was deliberate, not that it was dishonestly motivated.
The case has now come before the Court of Appeal – see Director of Legal Aid Casework v The Queen On the Application of Sunita Sisangia  EWCA Civ 24. Giving judgment Lewison LJ (with whom Elias and Christopher Clarke LJJ agreed) reversed the judgment of Dingemans J. He said that the wrong interpretation of para 21(4) had been adopted. The purpose of para 21 is to provide a gateway to legal aid – even if the case gets through that gateway, it must still pass the means and merits tests. Whether or not the conduct complained of was dishonest or merely deliberate, it must still amount to an abuse of position. Lewison LJ then went through various arguments that had been put before concluding that “abuse of power” is
a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is. (para 30)
This is a not particularly helpful judgment. It restricts the scope of what will be funded under para 21, but doesn’t do so in a way that gives any degree of certainty about what is or is not to be funded. It’s clear that what will be required is something more than a mere allegation of tortious conduct or other unlawfulness. The conduct complained of must amount to an abuse of position or power; but what that is will depend on the individual case and the allegations made. The LAA’s previous interpretation that dishonesty is always required would seem to go too far, but Dingemans J’s view that as long as the act was deliberate it was enough didn’t go far enough.