Scottish Human Rights Law Group

DW (AP) for Judicial Review of a decision of the Scottish Ministers to issue two directions relative to Legal Aid for Defamation proceedings, Lord Wheatley, 13 November 2009, Outer House, Court of Session.

In this case, a man whose partner had been refused fertility treatment on the basis that Edinburgh City Council had reported the existence of an apparently unfounded allegation that he had been in prison for murder, sued over the refusal of legal aid.

The couple went abroad for private treatment, which was successful. The Scottish Legal Aid Board said that, although his complaint was based in part on negligence and in part on alleged violations of his Arts 6, 7 and 8 rights, it was essentially one of defamation. The 2007 and 2008 Directions of which he sought judicial review were irrational, he claimed, because they made it practically impossible to get legal aid for defamation.

Lord Wheatley refused the petition for a variety of reasons, holding that it was an academic question, the Scottish Legal Aid Board hadn’t received adequate medical evidence and so would have refused legal aid anyway and that the applicant had not exhausted his remedies. Importantly for Art 10, however, Lord Wheatley agreed with the Sheriff Principal that the Scottish Ministers fully intended to make legal aid for defamation only in exceptional cases: “The standard that has to be reached in this respect…may be almost insurmountable, but…it is clear that was nonetheless what the legislature intended. But that is not quite the same thing as saying that the granting of legal aid for such claims has become impossible. I cannot therefore hold that the Directions are irrational…” (The 2007 and 2008 Directions are effectively in the same terms- both introduce an extremely limited right to legal aid in defamation actions of overwhelming individual and distinctive wider social importance.)