LEGAL SERVICES AGENCY V ANDERSON HC WN CIV-2008-404-5206

LEGAL SERVICES AGENCY V ANDERSON HC WN CIV-2008-404-5206 15 December 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-404-5206UNDER the Legal Services Act 2000 IN THE MATTER OF an appeal from a decision of the Legal Aid Review Panel dated 16 June 2008 BETWEEN LEGAL SERVICES AGENCY Appellant AND DANIEL ANDERSON Respondent Hearing: 4 December 2008 Appearances: G D S Taylor for the appellant S Cooper for the respondent Judgment: 15 December 2008RESERVED JUDGMENT OF CLIFFORD J Introduction[1] The respondent, Daniel Anderson, has special educational needs. The Ministry of Education ("the Ministry"), through the Group Education Service, formerly the Special Education Service ("SES"), supplies services to people with special educational needs. Mr Anderson is suing the Attorney-General complaining that SES and/or the Ministry of Education have breached duties owed to him. [2] The appellant, the Legal Services Agency ("the Agency"), granted Mr Anderson legal aid in March 2001. [3] In May this year the Agency withdrew Mr Anderson's legal aid. [4] Following an application by Mr Anderson, the Legal Aid Review Panel ("the Panel") reversed the Agency's decision.[5] This is an appeal by the Agency against that decision of the Panel.Background[6] Mr Anderson is now 24 years old. He is represented in the proceedings by his litigation guardian, his father Mr Eric Anderson. [7] From an early age Mr Anderson displayed developmental and behavioural problems. He has been diagnosed at different times as being autistic with multiple intellectual handicaps, memory delay and speech problems. On occasions he has violent physical or verbal outbursts. [8] Mr Anderson attended the Dominion Road primary school between the ages of five and eight years. He was then enrolled with the Correspondence School and was schooled at home from March 1993 until the end of 1995, when he was 11 years old. At that time, a registered psychologist for SES, Mr Coleman, assessed Mr Anderson and recommended to SES that Mr Anderson be enrolled with the Correspondence School for the 1996 year, but that the situation be reviewed towards the end of that year. [9] In January 1997 Mr Coleman recommended that Mr Anderson be returned to a mainstream school, on the basis of perceived advantages in terms of Mr Anderson's language and special learning needs. The report recognised that Mr Anderson would require a high level of support from teaching aides. [10] Mr Anderson was not enrolled at any school for the 1997 school year and the first three terms of the 1998 school year. Midway through 1998, SES recommended to Mr Anderson's parents that he be enrolled at Mt Roskill Grammar School. He was confirmed to be entitled to funding as a high needs student on 27 June 1998. He was then enrolled at Mt Roskill Grammar, beginning in the fourth term in 1998. [11] It seems that Mr Anderson had difficulties at Mr Roskill Grammar – both in terms of his own conduct and in terms of (allegedly) suffering abuse. In January 1999, the principal wrote to the Ministry to express concerns as to Mr Anderson'sattending a mainstream school and the appropriateness of this decision in light of his behavioural problems. [12] Mr Anderson was expelled from Mt Roskill Grammar on or about 1 June 2000 because of alleged serious misconduct. He subsequently attended Lynfield College. It is said that he had no significant problems at that school. [13] The original application for legal aid on behalf of Mr Anderson referred to "serious procedural and substantive deficiencies in the [expulsion] process which led to unfairness" to him and which were a "gross violation" of his rights under the Education Act 1989 (right to educate) and New Zealand Bill of Rights Act 1990 (cruel and unusual treatment). It also referred to an allegation that the SES had "failed in their statutory duty to provide for Mr Anderson's welfare and education needs". [14] Following the initial grant of legal aid in 2001, legal aid was continued and in May 2004 a first statement of claim was filed on behalf of Mr Anderson. At that time, Mr Anderson's solicitors advised the Agency that there was "an arguable case of negligence" against the SES and "an arguable case" in judicial review against the school. Legal aid continued. In June 2006 an amended statement of claim was filed. [15] At some point, the Attorney-General applied to strike out Mr Anderson's claim on the basis that SES did not owe the duties alleged. [16] Venning J heard the Attorney-General's strike-out application on 15 May, and delivered his judgment on that application on 6 June 2007. Venning J concluded that the very general and broad based duty of care alleged by Mr Anderson to be owed to him by the Attorney-General could not be sustained. There was, the Judge found, no basis for any such duty at law, bearing in mind the statutory framework of the Education Act which established the SES and its involvement and relationship with Mr Anderson. [17] Venning J then considered whether it would be possible on the pleaded facts to allege an alternative and more focused duty of care. He did so in the following terms:[73] I have considered whether it would be possible on the pleaded facts to allege an alternative and more focussed duty of care. The authorities referred to above of Phelps and Carty, in particular, confirm that in an appropriate case an education authority, in the position of the defendant, could owe a direct duty to a special needs student arising out of its obligation to provide special services, but the duty would be a duty owed to the individual student arising out of particular issues relevant to him. In the present case for example, the duties could perhaps include the duty: a) to use reasonable care and skill in the assessment of the plaintiff's needs category; or b) to use reasonable care and skill in the decision to mainstream the plaintiff as opposed to direct him to attend a special school; or c) to use reasonable care and skill in appointing an appropriately qualified psychologist to advise on the assessment and needs of the plaintiff, or duties of that kind. [74] Those are the sort of direct duties that could be owed by SES to parties in the position of the plaintiff arising from, particularly, s 9. There may well be others that could be formulated. But the plaintiff does not bring his claim on that basis. The factual allegations in the amended statement of claim do not support such duties. The existing pleading can not be sustained, and must be struck out.[18] The Judge concluded:[75] However, it may just be the plaintiff could reformulate a claim against the defendant even though that would require a complete revision of the factual allegations advanced in the current pleading.[19] In order to give Mr Anderson the opportunity to consider his position, Venning J ordered that unless an application for leave to file an amended statement of claim, together with the proposed statement of claim, was filed by 6 July 2007, on which leave was subsequently granted, Mr Anderson's claim would stand struck out. [20] There were some delays in responding to Venning J's judgment. In August 2007 a fixture for March 2008 was set for the hearing of Mr Anderson's application to file an amended statement of claim. Timetable orders were made, and subsequently varied, that required Mr Anderson's documents and casebook to be filed and served by 2 November 2007. When advised that delays were associated with the illness of Mr Anderson's then counsel, on 18 February 2008 Faire AJ made an order vacating the March fixture and allowing Mr Anderson until 17 March 2008 to instruct new counsel and until 28 April 2008 for that new counsel to file and serve his submissions and associated papers.[21] Mr Anderson's current solicitor and counsel (Ms Cooper) was instructed on 13 March 2008. On 3 April Ms Cooper wrote to the Agency. She applied for urgent funding to enable her to comply with Associate Judge Faire's order. The matter was referred within the Agency to a specialist adviser. [22] On 14 April 2008 the specialist adviser gave an opinion. He noted Venning J's judgment. He stated that the "essential issue facing the Agency is prospects of success", namely what were the prospects of obtaining leave to file an amended statement of claim, and, if so, of eventually succeeding at trial. He referred to evidence pointing against this and stated:I think that the appropriate course is to approve Ms Cooper as counsel, give notice of withdrawal of aid, and give Ms Cooper an opportunity to make submissions. Due to the pressing time limits, she can be advised that the grant will remain in effect until a decision on withdrawal is made. In addition to the balance of $3,310 remaining on the file, I would grant another 25 hours to enable Counsel to both report to the Agency, and do what is necessary to protect [Mr Anderson's] position in the meantime.[23] The Agency gave Ms Cooper notice to that effect on 15 April 2008. [24] Ms Cooper subsequently complied with the terms of Associate Judge Faire's order. As matters have transpired, a hearing was not required and an amended statement of claim was filed on 10 July 2008 after leave was granted by consent. [25] Ms Cooper responded to the Agency's notice of intention to withdraw aid on 2 May 2008. She attached a draft (fourth) amended statement of claim and referred to her belief that the Agency's concerns as to the case's prospects of success were addressed by the amended pleadings. She commented that, from her perspective, "there has been no change in circumstances at this particular point in time which would justify the Agency in deciding to "pull the plug" now". [26] Three specialist advisers formed a panel to consider the matter. They reported on 27 May 2008. They commented:2. We all had concerns about the case. At its core the reformulated claim is that the SES and/or Ministry were negligent in directing [Mr Anderson] to attend Mt Roskill Grammar School. It is argued that the Ministry and/or SES and their staff, psychologists, teachers at [the school] and agents acting with their authority failed to act with due careand skill, in assessing [Mr Anderson], making decisions, ensuring a safe environment, responding to concerns and preventing deficiencies at [the school]. As a result [Mr Anderson's] education is said to have been detrimentally [sic] and he suffered pain and distress. 3. The alleged facts are recited at length in the newly drafted 4 th amended statement of claim. It seems to me that they are tailored as much as possible to fit the duties that Venning J said could be pleaded. 4. But we think that the same fundamental problems remain. As Venning J pointed out (para 48):• SES recognised [Mr Anderson] as a special needs student.• It allocated funding appropriate to the category at which he was assessed.• SES was not responsible for the day to day education of [Mr Anderson].• [Mr Anderson's] parents had the right to seek review of the SES decision.[27] After considering case law, and an Education Review Office report dated February 2000, the advisers stated their view that:11. The reformulated claim, while thoroughly set out, to me faces numerous obstacles making an award of damages most unlikely. I do not think that a reasonable self funding person would pay a large sum to test the issue in Court. I do not think the chance of success would justify the expense. 12. The [three advisers] agreed that aid should be withdrawn.[28] The advisers proposed advice to Mr Anderson that included the following:Having regard to costs, benefits and the strength of [Mr Anderson's] case we do not believe that a reasonable self funding person would pay substantial costs to continue with the case. See Timmins v Legal Aid Review Panel[2004] 1 NZLR 708. In assessing the prospects of success of expensive High Court proceedings it is not enough to provide us with a statement of claim which may withstand a strike out application. We need a realistic assessment of the facts, the law, the obstacles the claim faces, the costs, the chances of success and the likely remedies. None of this has been supplied. This case has been lengthy and expensive and has thus far yielded nothing, other than a conditional strike out by the Court.[29] After explaining why the advisers did not think that the case had a good prospect of success, they continued:To us, the reformulated statement of claim prepared by you is an attempt to tailor various facts and propositions after the events to formulate a technically sustainable claim. We adopt the position of a reasonable self- funding litigant and stand back and look at the case overall. To us, it has very little chance of success. Difficult questions of proof, causation, expert evidence, vicarious liability arise. The Courts are reluctant to second guess professional judgments, (especially in an education setting) even in judicial review proceedings let alone in a damages action. To us the case faces too many difficulties to justify the substantial expense of taking it further.[30] On 29 May 2008, the Agency so advised Ms Cooper. [31] On 4 June 2008 Ms Cooper applied to the Agency for reconsideration. [32] On 9 June 2008 Mr Anderson's father applied on behalf of his son to the Panel to review the Agency's decision.The Panel's decision[33] In its decision of 16 July 2008, and after reviewing the facts and submissions made by Mr Anderson's father, the Panel identified the issue before it as being "whether the Agency's decision to withdraw legal aid was manifestly unreasonable and wrong in law". [34] The Panel then discussed relevant general legal principles. [35] Turning to discuss Mr Anderson's particular application, the Panel referred to the principle that legal aid funding should not be withdrawn unless the initial decision to grant aid was made in error or matters under s 26(2)(a) of the Legal Services Act 2000 ("the Act") arise (Legal Services Agency v Black HC WN CIV 2004-404-2561 14 October 2005). It acknowledged that the Agency's power to withdraw aid is discretionary but the Agency must have a proper basis for the exercise of its discretion (British American Tobacco (New Zealand) Ltd v Legal Services Agency [2006] 1 NZLR 675 (CA)). [36] The Panel referred to the Agency's comments citing Timmins and noted that "benefits" include both pecuniary and non-pecuniary benefits and can include "vindicating some important point of principle" (Timmins at [30]).[37] The Panel then reasoned as follows:[35] The main issue in this review is whether circumstances have changed sufficient to justify a review of the grant of aid. The factual circumstances have not changed since the grant of aid was made in 2001 and the Agency has not pointed to any change in the applicable laws. The only factor that has changed, other than a change of listed provider, is that, in his judgment of 6 June 2007, Justice Venning indicated that the case would be struck out unless it was reformulated. [36] The Agency stated "[t]o us, the reformulated statement of claim prepared by you is an attempt to tailor various facts and propositions after the events to formulate a technically sustainable claim". The Panel considers that preparing an amended statement of claim was entirely appropriate in light of the terms of Justice Venning's decision. [37] In its letter of 29 May 2008 to the listed provider, the Agency refers to the Applicant having subsequently attended another mainstream school, apparently without problems, adding "[i]n the end, we think that further public funding of this case not justified, [sic] or cost effective". The Panel does not accept that subsequent satisfactory treatment by a different school has any relevance to the present case and is not a factor relevant to the withdrawal of aid. [40] To have funded this claim since 2001 and then at this late stage withdraw legal aid without any discernable [sic] change in circumstances is manifestly unreasonable.[38] As such, the Panel reversed the Agency's decision to withdraw aid.Grounds of Appeal[39] The Agency advanced three grounds of appeal. These were that the Panel erred in law in holding that: a) The main issue in the review was whether circumstances had changed sufficient to justify a review of the grant of aid. That was the issue for the Agency, not the Panel. The issue for the Panel was whether the Agency erred in law or made a decision that was manifestly unreasonable. b) The Agency took into account an irrelevant factor by making reference to Mr Anderson having subsequently successfully attendedanother mainstream school, as Mr Anderson's pleadings contend that his enrolment in mainstream schooling itself is misconceived. c) It was manifestly unreasonable for the Agency to have funded the claim since 2001 "and then at this late stage withdraw legal aid without any discernible change in circumstances" when: i) Mr Anderson's claim had to be reformulated following Venning J's judgment on the strike out application; and ii) Venning J's judgment was a change in circumstance which justified the Agency in giving fresh consideration to Mr Anderson's prospects of success pursuant to s 26(2)(a) of the Act and in light of his amended pleadings.Approach on Appeal[40] Section 59 of the Act provides for appeals to the High Court from decisions of the Panel as follows:59 Appeal on question of lawIf the Agency or an applicant considers that the Review Panel's determination is wrong in law, the Agency or the applicant (as the case may be) may appeal to the High Court on the question of law, and the appeal must be dealt with in accordance with the rules of court.[41] In Singh v Legal Aid Review Authority [1997] NZAR 414 (a case under the preceding 1991 Act) Fisher J explained what the Court will look at in an appeal on a question of law as follows:The difficulty as I see it is that it is so easy for appeals of this sort ostensibly brought on a question of law to slide into what is in substance an appeal on the merits. Expressions for example such as 'excessive weight' being given to some particular considerations are in my view a clear indication that one is here talking about value judgments rather than questions of law. Further, it cannot be denied that it is open to a legal services subcommittee to withdraw aid on various grounds, including the view that 'the aided person no longer has reasonable grounds for taking or being a party to the proceedings'. Further in applying that broad criterion the subcommittee can of course refer back to the primary criteria for granting aid in the first placepursuant to s 34 [of the 1991 Act]. That includes the consideration pursuant to s 34(3)(e)(ii), 'that having regard to the nature of the proceedings and the applicant's interest in them (financial or otherwise) in relation to the likely cost of the proceedings, the grant of aid is not justified'. These are very broad grounds and, in what was admittedly a very brief set of reasons for decision, I do not think it possible to convert what seems to me to have been a value judgment open to the Authority into some error of law. It is not essential for a decision-maker to articulate every possible legal consideration in reasons for decisions. Conversely, the fact that a decision-maker has not set out every possible legal consideration does not mean or even hint at an error of law on the part of the Authority.[42] The question for this Court, therefore, is whether the Panel erred in law, as opposed to whether the Agency's decision was correct. [43] The grounds on which the Panel may review a decision of the Agency are that the decision of the Agency (here, to withdraw legal aid) was manifestly unreasonable or wrong in law (s 54 of the Act). Therefore, whether the Panel erred in law "is ordinarily answered by inquiring whether the Panel was right to conclude that the Agency erred in law or was manifestly unreasonable, since that is the test that must be satisfied in law before the Agency's decision may be reviewed": LSA v Brown (2005) 17 PRNZ 523 at [30], per Miller J. [44] Section 59 specifies that the appeal is to be dealt with in accordance with the rules of the Court. As such, the Court's powers on appeal are as set out in r 718A of the High Court Rules. These powers include making any decision(s) this Court thinks the Panel should have made or directing the Panel to rehear the proceedings or (re-)consider or (re-)determine any matters the Court directs. [45] At the outset of the hearing, and responding to that part of Ms Cooper's submissions that addressed the substantive question of whether the Agency's decision withdrawing legal aid from Mr Anderson was "manifestly unreasonable", Mr Taylor submitted that that was not an issue raised by this appeal. Rather, the basis upon which the Panel made its decision was that Venning J's judgment was not a discernible change in circumstance entitling the Agency to review its decision to provide legal aid to Mr Anderson. The question on this appeal was therefore whether, as a matter of law, the Panel had been right to reach that decision. Although the Panel had couched its decision in terms of the Agency's decision being "manifestly unreasonable", in effect the Panel had made its decision on the basis thatthe Agency had erred in law. Mr Taylor recognised, however, that the Panel did not appear to have dealt with that part of Mr Anderson's application for review which raised the substantive question as to whether or not the Agency had been manifestly unreasonable in withdrawing his grant of legal aid by reference to his prospects of success. [46] After some discussion, both Mr Taylor and Ms Cooper concurred that, were this appeal to be upheld, the appropriate response from the Court in terms of the substantive correctness of the Agency's decision would be to refer that matter back to the Panel for its consideration. [47] I have carefully considered that joint submission. I have, with some reluctance, concluded that that is the correct approach. My reluctance relates to the length of time that these matters have now taken, and the already acknowledged frustrations that Mr Anderson and his father will no doubt be feeling at the way this matter has proceeded over time. On the other hand, were I to consider and decide whether the Agency had acted manifestly unreasonably, which I think in terms of r 718A I could, I would be embarking on a review of matters on which I have only limited submissions. In particular, I note that the Agency itself has not addressed those issues and that the issues raised are difficult ones, as acknowledged by Ms Cooper. [48] This appeal, therefore, concerns the question of whether or not, as a matter of law, the Agency was entitled to reconsider and review Mr Anderson's entitlement to legal aid by reference to Venning J's strike out judgment and the re-pleading reflected in the revised statement of claim.Discussion[49] The Agency's decision to withdraw aid was based on s 26(2)(a) and s 9(3) and (4)(d)(i) of the Act. At the relevant time, those sections provided as follows:26 Withdrawal of, or amendment to, grant of legal aid: civil matters(2) In relation to a civil matter, the Agency may withdraw legal aid from, or amend a grant of legal aid to, an aided person in any of the following circumstances: (a) the aided person is no longer a person who would be entitled to that grant of legal aid, by virtue of any of the provisions of sections 9, 10, or 11: 9 When legal aid may be granted: civil matters (3) The Agency must refuse to grant legal aid if the applicant has not shown that the applicant has reasonable grounds for taking or defending the proceedings or being a party to the proceedings. (4) The Agency may refuse to grant legal aid to an applicant in any of the following circumstances: (d) in the case of original proceedings,— (i) the applicant's prospects of success are not sufficient to justify the grant of legal aid; [50] I propose to first discuss the Agency's first and third grounds of appeal, and then consider its second ground of appeal. [51] The Agency essentially withdrew legal aid from Mr Anderson on the grounds there had been a change in circumstances such that it believed that the prospects of success did not justify a grant or continuation of grant of legal aid. The Panel, in overturning that decision, held that the Agency had acted manifestly unreasonably because there was no discernible change in circumstance that could justify such a decision. [52] The essential point of law raised by grounds one and three is, therefore, whether the Panel was right as a matter of law to conclude that the change of circumstances identified by the Agency – namely Justice Venning's decision and the associated filing of the fourth statement of claim – were not a sufficient basis upon which the Agency was entitled to reconsider Mr Anderson's entitlement to legal aid. [53] Mr Taylor submitted that the correct legal principles applying to that question could be set out as follows: a) On the basis of Legal Services Agency v Black that:i) "Absent application of any of the provisions of s 26(2) of the Legal Services Act 2000 ("the 2000 Act"), an aided person is entitled to expect that the grant will continue unless there has been a change of circumstances." (Black [51]) ii) "The Agency may also withdraw aid if aid was originally granted by "mistake"." (Black [48]) iii) "Mere "second thoughts" or "better" thoughts cannot justify withdrawal of aid." (Black [52]) b) On the basis of Legal Services Agency v Ogilvie HC WN CIV-2006- 404-739 29 June 2006, that: i) "The change of "circumstances" referred to in Black was not limited to the "underlying facts and circumstances" of the matter." (Ogilvie [36]) ii) "A change of circumstances is "a development in the proceedings which is capable of throwing new light on the aided person's prospects of success"." (ibid) iii) ""No longer" in s 26(2)(a) can take account of the knowledge of the matter the Agency has at a particular time", which includes new information (information not available at the time the most recent amendment to the grant of aid was made, which leads the grants officer to re-assess the prospects of success." (Ogilvie [37]). iv) A "District Court judgment on the prosecution of [a] person claimed to have been negligent was a change of circumstances in that case." (Ogilvie [38]) [54] Applying those principles, Mr Taylor argued that Venning J's judgment identified where and how in law Mr Anderson's claim could not succeed. At thesame time, His Honour identified possible duties which could arise in circumstances akin to those relating to Mr Anderson at the relevant time. Although the factual allegations in Mr Anderson's statement of claim did not support such duties, Justice Venning did not rule out the possibility that facts might be able to be pleaded which could. [55] As such, Mr Taylor contended that Venning J's judgment constituted "a development in the proceedings which is capable of throwing new light on the aided person's prospect of success" and resulted in a change in the "knowledge of the matter the Agency had at a particular time" (per Ogilvie at [36] and [37]). This was, Mr Taylor submitted, relevant new information. [56] Mr Taylor also argued that the fourth amended statement of claim itself was a development capable of throwing new light on the aided person's prospects of success. Following the strike out decision, Mr Anderson's case had been reformulated, in terms of the presentation of the factual basis of the claim, and essentially remade, in terms of the legal theory of the case. Mr Taylor says that it was, in effect, a new claim, albeit based on the same underlying factual circumstances. Given this reality, in effect the Agency was required to reassess the prospects of success as it had not previously considered the substance of the claim represented by the new statement of claim. Mr Taylor therefore contends the Panel was wrong to say that, because the underlying facts and circumstances which had given rise to Mr Anderson's claim had not changed, aid could not be lawfully withdrawn. Further, the Panel was also wrong to conclude that Venning J's judgment did not constitute a change in circumstances relevant for the circumstances of s 26(2)(a), as interpreted in Ogilvie. [57] For her part, Ms Cooper advanced two fundamental propositions. [58] First, she submitted that Venning J's judgment in and of itself was not a change of circumstances and could be distinguished from the situation in Ogilvie. Unlike in Ogilvie, the facts of the present case have not been tested in Court. Venning J had not found that the facts of the respondent's case could not merit an award of damages, but merely gave an order for the pleadings to be amended.Furthermore, the concerns identified by the Agency in its letter of 29 May 2008 were matters of which it had been aware from much earlier in the proceedings. Therefore, taken together, this was not a situation – unlike that in Ogilvie – where there had been a genuine new development. Rather, this was a situation of the Agency – by reference to matters it had previously been aware of, and had had concerns about – having second thoughts, albeit prompted by Venning J's strike out decision. [59] I note too that Ms Cooper argued that the Agency did not have the fourth amended statement of claim when it made its decision to withdraw aid. However, on this, the evidence is that a draft was sent by Ms Cooper to the Agency on 2 May 2008 and indeed the Agency referred to the amended pleading in its decision on 27 and 29 May 2008. [60] Ms Cooper also submitted that the recognition that an amended pleading could constitute an occasion which might entitle the Agency to review entitlements for legal aid was something to be considered carefully. Pleadings were amended regularly and for good reason. It was not to be suggested that an amendment of pleadings could, in and of itself, entitle the Agency to review a claimant's entitlement to legal aid. [61] I accept Mr Taylor's statement of principles as drawn from Black andOgilvie. I did not understand Ms Cooper to disagree with that statement of principles. [62] In Ogilvie the Agency appealed against a decision of the Panel reversing the Agency's decision to withdraw further legal aid from Mr Ogilvie for a civil proceeding for exemplary damages in relation to a motor vehicle accident. Mr Ogilvie claimed that the accident had been caused by the alleged gross negligence of a truck driver allowing oil to spill onto the road. Subsequent to the initial grants of legal aid for Mr Ogilvie, the truck driver was prosecuted under the traffic regulations then in force. In the District Court, Judge Noble found that the spillage of oil from the truck driver's vehicle had not been established to give rise to a likelihood of harm to the public or any person and said that, in any event, the truck driver would likely have been discharged without conviction or, alternatively, convicted anddischarged with no disqualification. This was because the Judge found the truck driver "to be a reasonable citizen doing what he thought was reasonable in all the circumstances of the case". [63] The question in Ogilvie was whether the Agency's receipt of the Judge's decision was a change in circumstances such that the Agency could review granting aid. The Panel had said no. [64] On appeal, the Court held:[35] There can be no doubt that the Agency is entitled to withdraw legal aid if any of the circumstances set out in s 26 of the Act apply. It is also clear from decided authorities, and from the terms of s 9 of the Act, that the Agency is entitled to take prospects of success into account. Further, prospects of success may be considered in the course of proceedings, as the recent decision of Taawha-Falwasser[Legal Services Agency v Taawha-Falwasser HC AK CIV-2005-404- 1792 19 May 2006] illustrates. [36] The Panel found that the decision of Judge Noble was not something that could be a change in circumstances in terms of s 26 of the Act. With respect, I disagree with the reasoning of the Panel. Taken absolutely objectively in terms of the actual underlying facts and circumstances, it may be true to say that the respondent's claim had the same prospects it had when the Agency granted aid in February 2004. However, the decision of the District Court is very clearly a development in the proceedings which was capable of throwing new light on the respondent's prospects of success. As Mr Taylor submitted, "circumstances" in this context include information relating to the merits of the aided proceedings. That information changes repeatedly as more information about the merits is provided to the Agency, a point Goddard J made at para [48] of her decision inBlack. [37] In my view, the phrase "no longer" in s 26(2)(a) as interpreted by Goddard J can take account of the knowledge the Agency had about this case at a given time. This will include new information, (that is, information not known at the time aid was granted in respect of one or more stages of the proceedings), on the basis of which grants officers may reassess the prospects of success for the purposes of determining whether it is appropriate to continue granting aid. In such circumstances, no error of law would be made in invoking s 26(2)(a).[65] In my view, as is clear from Ogilvie, a change in circumstances can arise from a judicial decision reflecting on the prospects of success for the legal aid applicant's claim. Insofar as it throws new light on the applicant's prospects of success (or, indeed, the reasonableness of the grounds for taking or defending theproceedings), it is capable of affecting the knowledge of the claim that the Agency has so that the Agency may decide that the applicant is "no longer" a person who would be entitled to legal aid under, for example, s 9(3) or (4). To find that the change in circumstances must be a change in relation to the underlying facts of, or laws affecting, the applicant's claim is to inappropriately and unnecessarily restrict the language of the section. [66] It is my view that, taken together, the decision of Justice Venning and the preparation and filing of the fourth amended statement of claim did give rise to a change in circumstances such that the Agency had a legal basis on which to review its continued grant of aid. Together, they provided new information as to what sort of claim the respondent might be able to bring and the claim that the respondent was in fact pursuing. To say that these were not relevant changes in circumstances would be to ignore a very real development in the proceedings that could well have – and, indeed, must have – a significant effect on Mr Anderson's prospects for eventual success. Together, those events necessarily gave rise to the question of whether, in light of Justice Venning's remarks, the respondent's claim had been amended to an extent to which, first, it was reasonable to bring the proceedings and, second, whether there were good prospects of success. It is irrelevant whether the fourth amended statement of claim pleaded the same underlying facts – the development or change in circumstances was not in terms of the facts of the case but in terms of the ambit of the proceedings. [67] Venning J essentially found, in my view, that the case formulated by Mr Anderson and considered by the Agency was not one that could be sustained. Moreover, although Venning J recognised that a duty of care could possibly arise in circumstances akin to those that existed between Mr Anderson, the SES and the Ministry, he further found that the facts as pleaded by Mr Anderson did not support a finding that such a duty existed. He then expressed the somewhat tentative view that "it may just be the plaintiff could reformulate a claim against the defendant even though that would require a complete revision of the factual allegations advanced in the current pleadings". In my judgment, the scheme of the Act clearly requires the Agency to be satisfied on an ongoing basis that the applicant's prospects of success are sufficient to justify the grant of legal aid (s 9(4)(d)(i)). In terms of Black andOgilvie, I find it difficult to understand how Venning J's judgment, and the subsequent filing of an amended statement of claim, could be seen otherwise than as a change in circumstances which entitled, and moreover probably required, the Agency to consider afresh whether the grant of aid in favour of Mr Anderson was to be continued. That is, of course, not to say that any change in pleading will constitute such a change in circumstances. Venning J's decision, however, invited Mr Anderson to substantially re-plead his case in terms of applicable legal principles. Moreover, on the basis of re-pleaded facts, Mr Anderson was, in effect, starting again. I do not consider, therefore, that Ms Cooper's concern that the Agency should not be able to use any pleadings amendment as a basis for a reconsideration of a grant of legal aid, which concern I share, is a reason not to allow this appeal. [68] I acknowledge, as Ms Cooper submitted, that the Agency had been aware of various legal issues affecting Mr Anderson's claim for some time. In my judgment it is nonetheless plain that Venning J's decision shone a new light on those concerns so that, when the Agency reconsidered the position in May of this year, it was not simply having second thoughts in the sense reflected in the Black decision. Rather, it was considering afresh – as in my judgment it was entitled and indeed probably required to do – Mr Anderson's prospects of success in the manner contemplated in the Ogilvie decision. [69] As such, I am of the view that the Panel erred in law in finding that these events were not a sufficient basis on which the Agency might review its decision to grant aid. I therefore allow the Agency's appeal and find that the Panel erred in law as outlined in the Agency's first and third grounds of appeal. [70] Turning now to the Agency's second ground of appeal, Mr Taylor submits that the Panel erred in finding that the Agency took into account an irrelevant factor, namely that Mr Anderson subsequently attended another mainstream school, apparently without problems. [71] Mr Taylor submits that this was a relevant factor because Mr Anderson's claim refers to the alleged inappropriateness of mainstream schooling as such and thealleged failure to use due care and skill in recommending mainstream schooling (citing, particularly, paragraphs 27(d), 38, 51, 54(b) and 60(b) of the fourth amended statement of claim). Mr Taylor submits that, if Mr Anderson had no problems at his subsequent school, this would be relevant to the Court's decision whether it was negligent to recommend or require Mr Anderson's attendance at a mainstream school. [72] In my view, and for the reasons submitted by Mr Taylor, this was not an irrelevant factor. In the context of an allegation that mainstream schooling was, in some general way, an inappropriate response to Mr Anderson's needs, the fact that Mr Anderson subsequently attended a different mainstream school, apparently successfully, could not, in my judgment, be said to be an irrelevant consideration. The relevance of that consideration, particularly as regards the Ministry and SES, is that it supports an argument that the general option of mainstreaming was, in and of itself, not inappropriate for Mr Anderson. If so found, Mr Anderson's concern could be regarded as being more properly directed at the way, as alleged, Mt Roskill Grammar responded to his needs – thus potentially affecting the strength of his claims against SES and the Ministry. I therefore allow the Agency's appeal on this ground as well. [73] This appeal is allowed. On the basis already discussed, I refer back to the Panel for its consideration the question of whether or not, in the circumstances, the Agency's decision bringing Mr Anderson's entitlement to legal aid to an end was manifestly unreasonable. [74] I was not addressed on the question of costs. In the circumstances, it is not clear to me whether any question of costs arises. If the Agency does consider there to be such an issue, it may make an application accordingly."Clifford J"Solicitors: Bartlett Partners, P O Box 10852, Wellington for the appellant, (Counsel: graham.taylor@ johnsalmond.co.nz) Sonja M Cooper, Wellington for the respondent (smcooperlaw.co.nz).