How can you win £266,536.14 in damages and walk away without a penny? If those who should pay succeed in divesting themselves of their assets and if the costs of litigation swallow up all that you do manage to recover.

R (Tirkey) v The Director of Legal Aid Casework & Anor [2017] EWHC 3404 (Admin) is a stark reminder that the above can hold true even if you are an impecunious trafficked domestic worker and even if the litigation against your employers was funded by legal aid.

Trafficked domestic worker’s employment tribunal award absorbed by legal aid charge

The Chandhoks, Ms Tirkey’s employers, were able to divest themselves of their principal asset, their house, and transfer title in it to a third party, despite Freshfields Bruckhaus Deringer acting, pro bono and with alacrity, to get an interim charging order on the house to prevent this. Although Freshfields made clear the urgency of the case, the Central London County Court failed to allocate it to a judge for three weeks.

It proved possible to extract £35,702.80 from the Tirkeys by way of enforcement. But section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides:

1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

(2) Those amounts are—

(a) amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b) other amounts payable by the individual in connection with the services under section 23 or 24.

The court cited with approval (paragraph 15) the description of the statutory charge by Sir John Donaldson MR in Davies v Eli Lilly [1987] 1 WLR 1136:

…legal aid helps those who lose cases, not those who win them. Legal aid makes “out and out” grants to those who lose cases. It only makes loans to those who win them… every legally aided plaintiff should realise that if he succeeds in recovering more by way of damages, costs and interests than it has cost to recover them — if the money actually paid by the defendant in respect of damages, costs and interest exceeds his own costs, which after all is what he expected — he will be in no better position than an unassisted litigant.

The £35,000 was swallowed up by the statutory charge as a result of the costly and lengthy proceedings before the employment tribunal, which included an eight-day trial.

Human rights and EU law arguments against application of the charge were unsuccessful

The claimant argued that the application of the statutory charge in her case was unlawful because it breached her rights under:

• Articles 4, 6 and 14 of, and Article 1 Protocol 1 to, the European Convention on Human Rights;
• the Charter of Fundamental Rights of the European Union;
• Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.

None of these arguments succeeded.

As to the argument under Article 6, it was held that the charge did not interfere with access to justice.  Ms Tirkey had been able to bring proceedings (paragraph 31).

The court held that the aim of the statutory charge is to place the legally aided litigant in the same position as the litigant who does not have the benefit of public funds but who is able to fund the litigation from his/her own resources. Such an aim it held to be consistent with Article 6, any interference being proportionate (paragraph 32). 

The statutory charge was held not to violate Article 4.  William Davis J rejected the parallels the claimant sought to draw with the cases of Rantsev v Cyprus and Russia (application no. 25965/04) and Chowdury and others v Greece (application no. 21884/15), in the European Court of Human Rights. The reasoning on this point in the judgment is less than explicit, but it boils down to a rejection of the notion that the statutory charge extinguished a right to compensation.

Similarly, the charge was held not to violate Article 15(2) of the European Convention on Action against Trafficking in Human Beings because the civil legal aid scheme provided free legal aid for victims of trafficking under the conditions of UK law, as required by that Article.

The charge was held not to violate Article 1 of Protocol 1, the right to property, because the award was always subject to and encumbered by the charge. It was “arguable”, held the judge, that the award never was a possession of the claimant (paragraph 45). On proportionality: :

Every litigant knows that this is how the charge operates. The loan arrangement is justified in that it puts the legally aided litigant in an equivalent position to those not eligible for legal aid. It allows the public purse to recoup costs it has incurred if there is money available to meet those costs. That is in the public interest. For the same reasons it is in the general interest (paragraph 47).

The argument that the charge had a disproportionate effect on trafficked persons, contrary to Article 14 read with the other articles, was rejected (paragraph 53). It affected those with complex cases and thus those qualifying for exceptional funding.  But not all of them have been trafficked.

The charge was held not to violate Article 12(2) of Directive 2011/36/EU which requires legal representation to “be free of charge where the victim does not have sufficient financial resources” because that requirement  does not preclude recoupment after the event (paragraph 62).

An argument that her Convention and/or Charter rights would have been satisfied had Ms Tirkey recovered at least a substantial proportion of the award was rejected as lacking certainty. The statutory charge is a brightline provision (paragraph 63).

A private client might also have walked away with nothing

The withdrawal of legal aid from immigration cases exposed lawyers fighting them to the situation where the impecuniosity of clients affected the conduct of proceedings. No longer was it possible to take brave points where the client decided that they could not afford the risk. That immigration law nonetheless continues to develop against this backdrop is explained largely by clients’ desperation. 

This case is a reminder that in damages cases also the statutory charge puts the legally aided client in the position of the private client. A privately paying client under a conditional fee agreement might similarly have walked away with nothing.  In that scenario e the lawyers, rather than the Director of Legal Aid Casework, would have scooped the lot. 

Enforcement of judgments for the many, not the few

As the judge pointed out (paragraph 32), if the opposing party is known to have no or no sufficient assets prior to the commencement of proceedings, the legally aided individual, like the private client, will not bring the proceedings. What he describes as the “extremely unfortunate” (paragraph 63) circumstances of this case boil down, in large part, to the failure of Central County Court administration. One wonders whether it might be possible to bring a claim against the court administration in such a case, always bearing in mind the adage about those in glass houses.

But more generally, the extremely unfortunate circumstances are the fault of a system that does not automatically freeze a defendant’s assets but requires the commencement of enforcement proceedings. In this case, the enforcement proceedings were lengthy and costly. Freshfields acted pro bono nonetheless. For those unable to secure such assistance, the costs of enforcement are a further bar to obtaining justice.

While the case was argued from a standpoint of exceptionalism, that trafficked persons are different from other impecunious litigants, the reality is that they are all too similar. What is needed is not a carve out for the few, but a system that works for the many.