JUDGMENT
In the matter of an application of Raymond
Brownlee for Judicial Review (AP) (Northern
Ireland)
before
Lord Neuberger, President
Lord Kerr
Lord Clarke
Lord Reed
Lord Hodge
JUDGMENT GIVEN ON
29 January 2014
Heard on 5 December 2013
Appellant Respondent
Ronan Lavery QC
Conan Fegan BL
(Instructed by McGuigan Malone Solicitors)
John F Larkin QC,
Attorney General for
Northern Ireland
David Scoffield QC
Peter Coll BL
(Instructed by
Departmental Solicitor’s
Office
)
LORD KERR (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord
Hodge agree)
1. Following a trial before HHJ Miller QC and a jury at Belfast Crown Court,
Raymond Brownlee was convicted on 1 June 2012 of a number of offences including
false imprisonment, making threats to kill and wounding with intent. He had been
represented by senior and junior counsel until the close of the prosecution’s case. But
at that stage in the trial, differences arose between Mr Brownlee and his legal team.
Initially, senior counsel intimated to the trial judge that he felt professionally
compromised and had to withdraw from his representation of the accused. When the
judge put this to Mr Brownlee, he said that he did not want counsel to withdraw from
representing him and that he believed that things had been perhaps “taken up … the
wrong way”. At this point his solicitor intervened to say that he felt that the situation
was not irretrievable. On hearing this, the learned judge decided to give the solicitor
the opportunity to consult with his client over the lunch adjournment.
2. After lunch, Mr Brownlee’s solicitor informed the court that his client had
dismissed his legal team. The judge asked Mr Brownlee if he was to take it that he
wished to dispense with the services of the solicitor and the barristers who had been
acting for him. Mr Brownlee replied that he did and the judge indicated that he intended
to proceed with the trial. He did not permit the prosecution to close the case to the jury
but asked the accused man whether there was anything that he wished to say. Having
been informed that there was nothing which Mr Brownlee wished to say, the judge
proceeded to charge the jury and, after deliberations, they returned the guilty verdicts.
They also found the defendant not guilty on three further counts, on one of these by
direction of the judge. The case was adjourned in order to permit the defendant to retain
the services of new solicitors and counsel.
3. New solicitors came on record for Mr Brownlee on 29 June 2012. On 3 July
2012 the judge extended the legal aid certificate which he had granted in favour of the
defendant to include senior counsel as well as junior counsel and solicitors. That
decision was taken on foot of representations made to the judge that the sentencing
exercise would be complex. The offences were grave and the pre-sentence probation
report suggested that the accused man was a dangerous offender and it foreshadowed
an indeterminate or extended sentence as the possible disposal.
4. Correspondence was then exchanged between the accused’s solicitors and the
Northern Ireland Legal Services Commission (LSC). The Department of Justice is the
sponsor department of LSC. On 4 September 2012 the LSC wrote to Mr Brownlee’s
solicitors informing them that the fees payable for the sentencing hearing were fixed
according to paragraph 15 of Part IV of Schedule 1 to the Legal Aid for Crown Court
Proceedings (Costs) Rules (Northern Ireland) 2005 (the 2005 Rules SR 2005/112), as
amended by the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules
(Northern Ireland) 2011 (the 2011 Rules SR 2011/152). Despite the fact that counsel
who then appeared for the accused was not counsel who had represented him at trial,
only the fees stipulated in the 2011 Rules were payable. In this instance, these were
£100 for solicitor, £120 for junior counsel and £240 for senior counsel. No fees were
payable in respect of any preparatory work that counsel would be required to undertake.
5. It was pointed out that a substantial amount of preparation would be required in
order to properly represent Mr Brownlee during the sentencing exercise. Consideration
of the transcripts for five days of evidence and submissions would be necessary. A
decision would have to be taken as to whether a consultant psychiatrist should be
engaged. Detailed examination of the pre-sentence report was essential. Considerable
legal research would be required. The LSC replied to the accused’s solicitors and
informed them that no exception could be made to the level of the fixed fees prescribed
by the 2011 Rules. The exceptionality provision contained in the 2005 Rules had been
expressly removed by the 2011 Rules and there was therefore no possibility of departing
from the stipulated fees.
6. Following this exchange of correspondence, Mr Brownlee’s solicitors tried to
engage counsel to act for him on the sentencing hearing. This proved impossible.
Despite approaching various counsel, the chairman of the Bar Council and the Bar’s pro
bono unit, the accused’s solicitors have been unable to obtain the services of senior or
junior counsel. They have been consistently informed that the absence of any allowance
for preparation in the fixing of the fee level makes it unfeasible to act on behalf of the
appellant for the payment specified.
The statutory scheme
7. Article 36(3) of the Legal Aid, Advice and Assistance (Northern Ireland) Order
1981 (SI 1981/228 (NI 8)) contains the power to make rules for the purpose of carrying
into effect Part III of the Order whose title is “Free Legal Aid in Criminal Proceedings”.
As amended, article 36(3) provides:
“[The Department of Justice], after consultation with the Lord Chief
Justice, the Attorney General and, where appropriate, the [relevant Rules
Committee], and with the approval of [the Department of Finance and
Personnel] may make rules generally for carrying [Part III of the 1981
Order] into effect and such rules shall in particular prescribe –
…
(d) the rates or scales of payment of any fees, costs or other expenses
which are payable under [Part III].”
8. Article 37 sets out, in a non-exhaustive list, the matters to which the rule making
body must have regard. Again as amended, it provides:
“The [Department of Justice] in exercising any power to make rules as to
the amounts payable under this Part to counsel or a solicitor assigned to
give legal aid, and any person by whom any amount so payable is
determined in a particular case, shall have regard, among the matters
which are relevant, to-
(a) the time and skill which work of the description to which the
rules relate requires;
(b) the number and general level of competence of persons
undertaking work of that description;
(c) the cost to public funds of any provision made by the rules;
and
(d) the need to secure value for money,
but nothing in this Article shall require him to have regard to any fees
payable to solicitors and counsel otherwise than under this Part.”
9. It can be seen, therefore, that a clear enjoinder is given to the rule making body
to devise rules that will allow payment to be made which, among other things, reflects
the time and skill necessary to carry out particular types of criminal legal aid work. It
necessarily follows that rules which do not cater for payment on the basis of the skill
and time required for such work are ultra vires the enabling power.
10. The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland)
2005 contained provisions which permitted payment to be made above the standard rate
if a case presented exceptional difficulty. Rule 11(4) provided:
“(4) Where an advocate considers that, owing to the exceptional
circumstances of the case (or part of the case which is the subject-matter
of the application), the amount payable by way of fees in accordance with
paragraphs (2) and (3) [which made provision for the payment of standard
fees] would not provide reasonable remuneration for some or all of the
work involved, he may apply to the Commission for a Certificate of
Exceptionality and the Commission may, in its discretion, grant such
application in accordance with paragraph (5).”
11. Rule 11(5) contained a list of matters to be taken into account in deciding
whether a Certificate of Exceptionality should be granted. Again it was made clear that
this was a non-exhaustive list. Rule 11(5) provided:
“When considering an application for a Certificate of Exceptionality, the
Commission shall have regard, among the matters which are relevant, to-
(a) whether the issues involved were significantly more complex
than other cases involving the same offence or Class of Offence;
(b) whether the volume of evidence (including any un-used
evidentiary material) was significantly greater than that in other
cases involving the same offence or Class of Offence;
(c) any novel issues of law which were involved in the case; and
(d) any new precedents established in the case …”
12. Under the 2005 Rules, therefore, it would have been open to the new counsel
who had been retained for the sentencing exercise to apply for a Certificate of
Exceptionality on the grounds that the issues were significantly more complex for them
by reason of the fact that they had not previously been involved in the case and that a
substantial amount of preparation would be required on that account.
13. The exceptionality provision was swept away by the 2011 Rules. Rule 12 of
these Rules provided that paragraphs (4) to (8) of rule 11 of the 2005 Rules were to be
omitted. Paragraphs (4) and (5), whereby an uplift in fees could be applied for, were
no longer available for that purpose.
The decision of Treacy J
14. Mr Brownlee applied for judicial review of the department’s decision not to
allow any modification of the standard fees to be paid for the sentencing hearing in his
case. It was argued that the refusal to allow any payment for the extensive preparatory
work that would inevitably be required made it impossible for him to retain counsel.
This amounted to a denial of access to justice. Treacy J agreed. At para 47 of his
judgment he said:
“It is clear to me that the inflexibility of the impugned aspect of the
scheme is preventing the applicant from being able to make his right to
legal aid effective. This is a consequence of a blanket measure which
makes no allowance for the exceptional and unusual circumstances which
have arisen. Whilst there is much to be said for a fixed payment scheme
such a scheme must not undermine the principle that lawyers should
receive fair remuneration for the work they are required to do. The critical
defect here is the inflexibility of the Regulations and the inability of the
scheme to enable adjustments to be made even in exceptional and unusual
cases where the failure to do so would lead to injustice.”
15. The judge made an order of mandamus requiring the respondent, the Department
of Justice, to take all necessary steps to make the applicant’s right to legal aid effective.
He found that a modest adjustment to the scheme under the amended 2005 Rules was
required or that some other provision had to be made to deal with the exceptional and
unusual circumstances of the case and to avoid the injustice that would otherwise result.
The Court of Appeal decision
16. The Department of Justice appealed Treacy J’s order. The Court of Appeal
allowed the appeal. Morgan LCJ, delivering the judgment of the court, acknowledged
that inadequate remuneration within a legal aid scheme can give rise to a breach of a
defendant’s right to a fair trial under article 6 of the European Convention on Human
Rights and Fundamental Freedoms, if an accused consequently finds it impossible to
obtain the services of an appropriate lawyer to represent him. At para 33 of his
judgment, however, the Lord Chief Justice said this:
“… the appellant was provided with legal representatives who conducted
the trial on his behalf until it was near its end at which stage he dismissed
them. There is nothing to indicate that those representatives would not
have continued to act in the sentencing hearing if they had not been
dismissed and they, unlike newly instructed counsel, had benefitted from
the overall trial fee payable.”
17. In fact, it is clear from a transcript of the hearing before HHJ Miller QC that it
was senior counsel who had initiated the process of withdrawal from the case. He told
the judge that he felt professionally compromised and could no longer act for Mr
Brownlee. At that stage, the appellant did not want counsel to withdraw. There can be
no question of counsel having been dismissed by the appellant at that point. It was only
after lunch, having been given time to consult with his solicitor, that Mr Brownlee said,
in answer to the judge’s direct question, that he wanted to dispense with counsel’s
services. There was no further investigation of the circumstances in which that decision
had been reached. It is entirely possible that the appellant had concluded that he could
no longer insist on counsel representing him when counsel had indicated that he was
professionally compromised. Despite the Court of Appeal’s finding to this effect, it is
by no means clear that counsel would indeed have continued to act but for the fact that
they had been dismissed by the appellant. As it happens, in para 36 of the judgment,
(which is quoted below), the Court of Appeal foresaw that the sentencing judge might
wish to explore further the reasons that the appellant had decided to dispense with the
services of his legal team. It must be presumed that it was felt that such a further
investigation might have borne directly on the question of whether, if the appellant was
not legally represented, he could have received a fair trial.
18. Notwithstanding this, it appears that the Court of Appeal’s conclusion that the
appellant had dismissed his legal team for no good reason was central to their decision
on the appeal, for at para 36 Morgan LCJ said this:
“An accused who loses his legal representation in the course of a trial
through no fault of his own should be given the opportunity to obtain
alternative representation. Where he cannot do so because of the
inadequacy of legal aid funding a breach of article 6 may well follow. The
inflexibility of these Rules potentially raises the possibility of such an
outcome. In this case, however, the material before us suggests that the
accused dismissed his counsel and solicitors without any reasonable
explanation at a late stage of his trial. Whether the circumstances of this
case are such that even then a breach of article 6 would arise from the
absence of an ability to secure further representation by counsel
necessitates a careful review of the issues in the sentencing exercise. The
learned trial judge will know the factual basis for the conviction, having
heard the evidence. He will have the opportunity to hear from the author
of the pre-sentence report and to see the psychiatric report prepared for
the appellant if it is relied upon. He may wish to explore further the
reasons for the decision by the appellant to dispense with his original legal
team. He will be in a position to judge the materiality of previous
convictions against the circumstances of the offence and the reports. All
of those matters indicate that the decision as to whether the absence of
legal representation gives rise to a breach of article 6 is a highly fact
specific exercise which should be decided by the trial judge.”
19. The Court of Appeal clearly had it in mind that the trial judge should determine
whether the matters which came up during the sentencing hearing would give rise to a
breach of article 6 and that that determination should be made as and when those matters
became apparent in the course of the hearing. But the judge had already decided that
the issues in the case warranted the grant of a legal aid certificate for senior and junior
counsel. This suggests that he had already concluded that, if the appellant was to have
a fair hearing, it was essential that he be legally represented. In effect, therefore, the
Court of Appeal’s conclusion would have required the judge to revisit a decision which
he had already made. Quite apart from this, it is not difficult to envisage difficulties that
a trial judge would face if he or she had to decide, on an ad hoc basis, whether legal
representation for the sentencing hearing was required, if that decision was to be made
in the course of the hearing itself.
20. It is clear from the Court of Appeal’s judgment that they also considered that the
appellant’s contesting of the department’s refusal to adjust the standard fee constituted
an impermissible collateral challenge to the criminal proceedings. In para 37 of his
judgment the Lord Chief Justice referred to the decision in R (Kebilene) v Director of
Public Prosecutions [2000] 2 AC 326 where the House of Lords had held that criminal
proceedings should not be subjected to delay by collateral challenges, and that as a
general rule the courts would refuse to entertain a judicial review application where the
complaint could be raised within the criminal trial and appeal process.
21. The circumstances in Kebilene were, of course, markedly different from those in
the present case. In Kebilene an application had been made to restrain a prosecution on
the basis that its continuation would constitute a violation of article 6. The House of
Lords held that this was an issue which could be dealt with at the trial and, if necessary,
on appeal. Here the appellant does not seek to restrain completion of the criminal
process. On the contrary, he wishes to have legal representation in order to bring the
proceedings to a close. The trial judge is not in a position to undertake a judicial review
of the Department of Justice decision to refuse to increase the fee payable for the
sentencing hearing. Unlike the position in Kebilene, therefore, the violation of the article
6 right cannot be cured or catered for in the course of the sentencing hearing. I do not
accept therefore that the judicial review proceedings constituted a collateral challenge
to the criminal process.
22. It is, of course, true that the judge could have considered again the circumstances
leading to the withdrawal of counsel who had originally represented the appellant. It is
also true that, on that reconsideration, the judge could have confirmed his decision to
grant a defence certificate for senior and junior counsel. But, from the point of view of
the appellant, he was entitled to assert that the judge’s earlier determination of this
question was (and could only be) consistent with the conclusion that he had not forfeited
the right to be legally represented. Indeed, in a case such as the present, where a
defendant faces the prospect of a significant prison sentence (in the appellant’s case an
extended or even an indeterminate sentence is a distinct possibility) and where he
wishes to be legally represented, a determination by a judge that the sentencing hearing
should take place without legal representation could only be made if he had concluded
that the defendant had forfeited his right to such representation.
23. In allowing the Department of Justice’s appeal, the Court of Appeal relied on the
decision in R v UIcay [2007] EWCA Crim 2379. That case was concerned with
regulation 16 of the Criminal Defence Service (General) (No 2) Regulations 2001 (SI
2001/1437) which provides that any application for a change of representative may be
refused or granted by the court to whom it is made on grounds which are set out in the
regulation. One of the consistent requirements of regulation 16(2) (a)(i) – (iv) is that a
legal representative should provide details of the nature of the duty which he believes
requires him to withdraw from the case, or the nature of the breakdown in the
relationship between him and his client. At para 31 of the judgment the President of the
Queen’s Bench Division said:
“The purpose of this part of the Regulations is to ensure that the client
does not manipulate the system, seeking to change his lawyers for dubious
reasons which include, but are not limited to, the fact that the lawyer
offers sensible, but disagreeable advice to the client. Claims of a
breakdown in the professional relationship between lawyer and client are
frequently made by defendants, and they are often utterly spurious. If the
judge intends to reject an application for a change of legal representative
he may well explain to the defendant that the consequence may be that
the case will continue without him being represented at public expense.
The simple principle remains that the defendant is not entitled to
manipulate the legal aid system and is no more entitled to abuse the
process than the prosecution. If he chooses to terminate his lawyer’s
retainer for improper motives, the court is not bound to agree to an
application for a change of representation …”
24. It is implicit in this passage that the court would refuse an application for change
of representation only where it had decided that the accused had terminated the lawyer’s
retainer for improper motives or was seeking to manipulate the legal aid system. In the
present case, the judge cannot have considered that the appellant was embarked on such
a course because he granted a legal aid certificate for the sentencing hearing.
25. The Court of Appeal in the present case said that the grant of a new legal aid
certificate should be taken into account but that this “on its own does no more than what
was said at para 36 of Ulcay”. This is the passage from that paragraph which the Lord
Chief Justice quoted in support of his conclusion as to the limited relevance of the grant
of a new legal aid certificate:
“… The fact that the judge was prepared to transfer the legal aid certificate
does not mean that he was saying that, whatever the consequences to the
trial, new representation must be obtained, and that thereafter he would
conduct the trial in accordance with whatever applications were made by
new counsel. The clear implication of what the judge decided was that
whilst he was content for new representation to be obtained at public
expense and no doubt he hoped that it would, nevertheless he could not
and did not abrogate his responsibilities to the interests of justice in the
overall context of the trial and its proper conduct and management.”
26. It is important to keep in mind the background against which these observations
were made. The appellant in Ulcay had not only withdrawn instructions from the legal
team that had represented him throughout the trial until the close of the prosecution
case. He had purported to withdraw admissions which he had already made in the
course of the trial. In particular, he had asserted that his was not the voice heard on
tapes of intercept evidence. He had previously accepted that it was indeed his voice.
The new legal representatives who had been engaged to act for Ulcay asked for an
adjournment of some weeks. The trial had begun on 5 September 2005 and the
withdrawal of original counsel took place on 18 October. The appellant wanted the trial
to be aborted and to begin again before a new jury. In these circumstances it is not
surprising that the trial judge refused to adjourn the trial nor, when he was told by
counsel that they could not represent the appellant unless an adjournment of some weeks
was granted, that he ordered that the trial must continue.
27. In the present case there is no question of the appellant wishing to manipulate the
system by deferring the sentencing hearing. Since he has been convicted and is in
custody awaiting sentence, it is obviously in his interests to have that part of the process
completed. The observations in para 36 of Ulcay relate to an attempt by the appellant
to have his trial aborted. This does not arise on the present appeal. In these
circumstances, the fact that the trial judge granted a further legal aid certificate is
indicative of his view that the engagement of a new legal team was not associated with
an attempt by the appellant to manipulate the trial process.
Events following the hearing of the appeal
28. After the Court of Appeal had heard the Department’s appeal but before judgment
was delivered, a consultation document was published as part of a review of the 2005
Rules. A section of this document dealt with the situation that had arisen in the
appellant’s case. At para 3.6 of the document the following appeared:
“One area where the 2005 Rules were challenged recently by judicial
review proceedings was on their alleged failure to provide appropriate
remuneration for a sentence hearing. This arose because the defendant
dismissed his counsel just before conviction and required new counsel to
represent him during sentencing. However, he was unable to secure the
services of counsel on the basis that the fees payable did not provide
sufficient remuneration for the work involved. Essentially, this was
because the new counsel would have to undertake an amount of
preparation work to familiarise themselves with the case before being in
a position to properly represent the defendant and, in these circumstances,
counsel considered that the fees available did not provide sufficient
remuneration. The circumstances which caused this situation to arise were
highly unusual and entirely unforeseen.”
29. This was an unambiguous acknowledgment by the Department that it had not
anticipated that new legal representatives might be required to take over at the
sentencing stage from those who had appeared for the accused at trial. More
importantly, the consultation document implicitly accepted that the 2005 Rules, in the
form that they existed after the changes brought about by the 2011 Rules, had failed to
cater for the proper remuneration of counsel briefed for the first time to appear for an
accused person after the trial had ended. This much is clear from a section in the
document headed ‘Omissions in the 2005 Rules’ para 3.16 of which stated:
“… the Department is content that it should make adjustments to the
sentence hearing fee contained in the 2005 Rules, where a new legal team
is instructed following a defendant’s conviction, to better reflect the
amount of work involved in preparing for and representing the defendant
at the hearing. To achieve this, the Department is proposing to set fees,
which could be applied retrospectively, that would be triggered by the
volume of evidence served on the defendant by the Public Prosecution
Service in relation to his case.”
30. The Department made it clear that, as well as considering responses to the
consultation document, it would take into account the judgment of the Court of Appeal
and might amend its proposals in relation to sentence hearing fees in light of it. The
consultation exercise took place between 5 July 2013 and 16 August 2013. Submissions
were received from the Bar Council, the Law Society and LSC. In November 2013 the
Department published its report on the consultation. It set out its conclusion in para 3.2
(sic) of the report as follows:
“In light of the Court of Appeal judgment, the Department is content that
it should proceed and introduce enhanced sentence hearing fees in the
2005 Rules, where a new legal team is instructed following a defendant’s
conviction, to better reflect the amount of work involved in preparing for
and representing the defendant at the sentence hearing. To achieve this,
the Department considers that it would be appropriate to introduce the
fees that were the subject of public consultation …”
31. Draft amendment rules were shown to this court in the course of the hearing of
the appeal on 5 December 2013. We were informed that these were to be considered
imminently by the Justice Committee of the Northern Ireland Assembly and that it was
planned that they should come into force in January 2014. It was proposed that the rules
should operate retrospectively. Rule 5 of the draft rules intimates an amendment of para
15 of Schedule 1 to the 2005 Rules by the insertion of a new para 15B which will make
provision for the payment of additional fees for preparatory work undertaken by a new
legal representative for a sentencing hearing.
Discussion
32. The assessment and payment of fees to a legal representative who has replaced
another at the sentencing stage of criminal proceedings was, self-evidently, a material
consideration which should have been taken into account by the rule making body
which introduced amendments to the 2005 Rules by the 2011 Rules. It has been frankly
acknowledged that this situation was not adverted to at the time of the making of the
2011 Rules. There was therefore an admitted failure to have regard to a relevant factor
and, on that account alone, judicial review will lie of the decision to introduce the 2011
Rules without making provision for the payment of fees which would properly reflect
the preparatory work which a legal representative, new to the case at the sentencing
stage, would have to undertake.
33. Since article 37 of the 1981 Order requires the rule making body to devise rules
that prescribe the payments to be made which reflect the time and skill necessary to
carry out particular types of criminal legal aid work, a failure to make provision for
remuneration of preparatory work by a new legal representative is, to that extent, ultra
vires the enabling provision. This situation is not relieved by the circumstance that the
rule making body must also have regard to the cost to public funds of any provision
made by the Rules; and to the need to secure value for money. Those factors
complement the obligation to have regard to the time and skill required to undertake
particular forms of work; they do not extinguish it.
34. At the conclusion of the hearing of the appeal, this court announced that it would
allow the appeal for reasons to be given later. This judgment contains those reasons.
At the time that the appeal was allowed, it was stated that we had concluded that a
declaration should be substituted for the order of mandamus made by Treacy J. When
he granted judicial review an order of mandamus was appropriate. Now that the
Department has accepted that the 2005 Rules require to be amended to allow for
payment for preparatory work undertaken by a new legal representative, mandamus is
no longer necessary. The declaration will be to the effect that the failure of the rule
making body to take account of the need to provide for such payment rendered the Rules
to that extent unlawful and ultra vires their powers under article 36 of the 1981 Order.
35. It was urged on this court that a failure to include in the Rules a general
exceptionality provision and the prescription of fixed fees for every form of payment
for legal work undertaken built into the Rules an inherent defect. The amount properly
payable to reflect the time and skill required in every conceivable situation demanded
the inclusion of a dispensing provision to cater for exceptional cases of which this was
merely one instance.
36. The need for a measure of flexibility, or rather, the perils of inflexibility, have
been well recognised in Buchanan and Advocate General for Scotland v McLean [2001]
SCCR 475, also reported as McLean v Buchanan [2001] 1 WLR 2425. The potential
for injustice inherent in a fixed payment scheme was expressly referred to by Lord Hope
in para 45 of his opinion in that case. And at para 71, Lord Clyde said this about the
Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, (SI 1999 No 491):
“… The most obvious, but perhaps not the only, risk may arise from the
lack of flexibility in the present Regulations. No allowance is made for
any unusual or exceptional circumstances. The requirements of fairness
in judicial proceedings are rarely, if ever, met by blanket measures of
universal application. Universal policies which make no allowance for
exceptional cases will not readily meet the standards required for fairness
and justice.”
37. Lord Clyde acknowledged that his observations went further than was required
to decide the issue before the Privy Council in that case. So also in the present appeal.
But his words contain a salutary warning. While we are satisfied that the new draft
rules, since they are to be applied retrospectively, meet the appellant’s complaint, it
cannot be predicted with confidence that a combination of circumstances, at present
unforeseen, might not give rise to a similar challenge to that which the appellant has
successfully made to the Rules in the present case.
