The Success Test for Civil Legal Aid in North-West Europe

When determining an application for civil legal aid, the use of a test concerning prospects of success, whilst common, makes an implicit statement about the purpose of civil legal aid.  At its most extreme, it can reduce what should be a means of achieving fair court hearings to a quasi-commercial speculation, asking in effect whether it is worth spending state money betting on the case being successful.  This article will explore the use of the criterion by jurisdictions in the Nordic countries, the United Kingdom and the Republic of Ireland.  An analysis of the range of approaches and the extent to which the different tests are consistent with the purpose and interpretation of Article 6 of the European Convention on Human Rights shows a stark contrast.  The Nordic countries in their cautious use of prospects of success as a determining factor in eligibility for civil legal aid exhibit a strong focus on fair trial and equality of arms, whilst the UK jurisdictions and the Republic of Ireland attempt to replicate a commercial decision-making and risk-taking approach, partly through reliance on the test.  It will be proposed that the use of a prospects of success test as the determinative factor in any application for legal aid is inconsistent with a commitment to fair trial.