On opening day we have this afternoon had the first decision of the Supreme Court in the JFS case, albeit an interim one.  In substance, it was a challenge to a decision of the Legal Services Commission (“the LSC”) in relation to the appellant’s costs.


The LSC had refused to provide funding for the appeal.  Where there is LSC funding the funded party is largely immune from an adverse costs order.  The refusal to provide funding this left the Claimant exposed to costs risks.  An application by the Claimant for a protective costs order (“PCO”) – restricting the amount in costs that could be awarded against the Claimant if unsuccessful on the appeal – was refused by Lord Hope, Lord Brown and Lady Hale. 

However, the Claimant, represented by Dinah Rose QC (there was a certain symmetry here since Rose also acted in the last case in the House of Lords) argued that the LSC was acting improperly and was making the application only under duress.  JFS (represented by Lord Pannick QC) and the United Synagogue (represented by Ben Jaffey) also argued that the LSC was acting improperly. The LSC was represented by David Hart QC.

The justices concluded that the decision of the LSC to refuse funding was improper and made a declaration that the LSC was acting unlawfully in refusing funding for the appeal.  In effect, they heard a judicial review of the LSC as their first hearing, relying on their wide inherent powers in section 40(5) of the Constitutional Reform Act 2005.  The justices thought the issue was important and are going to hand down a reasoned judgment in due course. 

We also understand that the JFS case is now going to be listed in front of nine justices, indicating its importance.

 On a more practical note, our source tells us:

“The Court was very light and attractive with excellent facilities in the lawyers’ suite.  The panel had retained the intimacy of the Lords.  The only problem was a lack of lecterns – counsel had to share a singly tatty one, borrowed from the RCJ.”
There were bound to be teething problems.
The case is also discussed by Joshua Rozenberg in his blog who adds some details about what was said and the hearing and tells a charming story about Lord Phillips listening patiently to an aggrieved litigant while walking back to the Court from the traditional legal year opening “Lord Chancellors’ Breakfast”.  He presented a short item on the Court on Sky News – including footage of the first hearing before the Court.
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