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Regulations on legal aid funding for judicial review held to be unlawful

06 March 2015
The Lord Chancellor suffered another setback in his efforts to restrict legal aid when the High Court ruled this week that regulations introducing a "no permission, no fee" arrangement for legally aided applications for judicial review are unlawful.

The Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 (the "Regulations") amended existing provisions such that legal aid practitioners would not be paid for work done up to the permission stage on an application for judicial review if permission to bring the claim was subsequently refused.  The stated purpose of the Regulations was to incentivise providers of legal services to focus on the proper application of the merits test for legal aid before applying for judicial review.

The claimants in R (Ben Hoare Solicitors & Ors) v The Lord Chancellor [2015] EWHC 523 (Admin) challenged the legality of the Regulations on the grounds that they were:

(i) ultra vires in that they were inconsistent with the Lord Chancellor's duty under the Legal Aid, Sentencing and Punishment of Offenders Act 2012  to "secure" civil legal aid services, including for judicial review;

(ii) incompatible with the statutory scheme that governs legal aid, principally under LASPO (ie a ground based on the well-known Padfield case, which requires decision-makers to act in accordance with the purpose of legislation conferring the power being exercised); and

(iii) likely to have a "chilling effect" on access to the High Court as people eligible for legal aid for judicial review claims would not be able to find lawyers to take on their case.

The Court held that the Regulations were not strictly ultra vires, as they were consistent with the overall structure and purpose of LASPO to a limited extent.  Accordingly, the claimants' first ground was rejected.

As for ground two, the Court noted that there were certain events in judicial review litigation that were unforeseeable or beyond the control of the provider – for example, the withdrawal by a defendant of the impugned decision such that the permission decision is never reached, or the court ordering a "rolled-up" hearing.   The Court held that, in those circumstances, the provision extended "well beyond the circumstances which can be seen as rationally connected to the stated purpose given for its introduction".  As such, it was inconsistent with the purposes of the LASPO scheme.  The application for judicial review therefore succeeded, and it was not necessary for the Court to determine the "chilling effect" ground.

The Court did not consider the question of appropriate relief; therefore, it remains to be seen whether the Regulations will be quashed.  It is nevertheless surprising that the MoJ is reported as having responded to the judgment as follows: "We are […] pleased this judgment confirms the principle of our reform is lawful. We will now carefully consider the technical aspects raised by the court and our next steps."

Ben Gaston

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