Berry Smith recently acted for the Respondents in an appeal against a County Court decision which refused to adjourn a committal hearing to allow the Defendant time to obtain legal aid-funded representation.

Background

At the original hearing, the Defendant explained that they had made several unsuccessful attempts to secure legal aid. While the Judge acknowledged that non-means tested legal aid may be available in committal proceedings, no further guidance was provided.

The Defendant requested an adjournment to seek further advice and representation. However, due to a lack of supporting evidence of these attempts — and the fact that the hearing had already been adjourned once — the Judge refused the application. The Defendant was subsequently found in contempt of an order made approximately eight months earlier, although sentencing was postponed.

The Defendant was given additional time ahead of sentencing to pursue legal aid and successfully secured funding to appeal the decision.

The Court of Appeal Decision

In Davies v Lettington [2026] EWCA Civ 364, the Court of Appeal considered whether the County Court had a duty to properly inform the Defendant about the availability of non-means tested legal aid in committal proceedings.

Foxton LJ confirmed that defendants in civil committal proceedings have a right to legal representation if they wish, and importantly, that non-means tested legal aid is available for such cases.

Key Issues Considered

The Respondents argued that the wording of CPR 81.4(2)(j) — which states that legal aid “may” be available — meant the Judge had fulfilled their duty by simply mentioning it, without providing further guidance.

However, Foxton LJ questioned the use of the word “may”, noting that in practice non-means tested legal aid applies in all committal proceedings. The Court therefore found that more than a passing reference was required.

The Respondents also submitted that the outcome would have been the same even if the Defendant had been represented, given the clear breach of the original order. This argument was firmly rejected. Foxton LJ emphasised that it is rarely appropriate to speculate on whether legal representation would have altered the outcome in committal proceedings.

Outcome

The appeal was allowed, the finding of contempt was set aside, and the case has been remitted to the County Court for rehearing.

This decision is now being treated as a key authority on legal aid and representation in civil committal proceedings.

The Court of Appeal made clear that:

• Courts have a positive duty to ensure defendants understand their right to non-means tested legal aid; and
• Defendants must be given a proper opportunity to obtain representation before proceedings continue.

While the Court confirmed that solicitors acting for claimants do not owe the same duty, it may still be prudent in practice to ensure defendants are clearly aware of their position.

This case reinforces the critical importance of access to legal representation in committal proceedings, where the consequences can be severe. For defendants, legal aid can be a vital safeguard. For practitioners, the decision highlights the need to ensure that these rights are properly understood and upheld.