But last week HHJ Collins was back on form on the same territory, the exceptional funding test, but this time for good measure he kicked a hole through LASPO's tougher general merits test in the case of IS v LAA: www.bailii.org/ew/cases/EWHC/Admin/2015/1965.html
The crucial passage is this: 96 "There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist. If a case involves issues of fact which will depending on the court’s findings determine the outcome, it must be obvious that the ability to challenge apparently unfavourable material and to cross examine adverse witnesses effectively may turn the case in a party’s favour. Accordingly, what has to be assessed is not what the present material when untested may indicate but whether if competent cross examination or legal submissions are made the result may be favourable. It is not for the LAA to carry out the exercise which the court will carry out, in effect prejudging the very issue which will be determined by the court. I recognise that there will be cases which it will be possible to say that whatever may be achieved by competent representation the result is likely to be unfavourable. The lengthy and detailed refusals which have been exhibited by the various witnesses have tended to carry out what I regard as the impermissible approach. The removal of the borderline cases from those that can succeed on merits grounds seems to me to be unreasonable".
The effect of this has been to suddenly reopen the doors to "borderline" and even "poor" (i.e. over 20% but less than 50% chances of sucess) in cases where human rights are engaged (eg in my line those housing cases where all we can argue is Article 8)