Court of Appeal restricts funding for actions against the police etc

We reported in 2014 on the case of Sisangia, R (on the Application of) v Director of Legal Aid Casework [2014] EWHC 3706 (Admin). The LAA had been interpreting para 21(4) of Part 1 Schedule 1 of LASPO to require there to be a credible allegation of dishonesty or bad faith before it would grant an application for funding to bring a challenge on the grounds of abuse of position by a public authority. This restrictive interpretation seriously limited the scope of cases that could be funded. Dingemans J held that it wasn’t the right interpretation; all that had to be shown was that the act was deliberate, not that it was dishonestly motivated.

The case has now come before the Court of Appeal – see Director of Legal Aid Casework v The Queen On the Application of Sunita Sisangia [2016] EWCA Civ 24. Giving judgment Lewison LJ (with whom Elias and Christopher Clarke LJJ agreed) reversed the judgment of Dingemans J. He said that the wrong interpretation of para 21(4) had been adopted. The purpose of para 21 is to provide a gateway to legal aid – even if the case gets through that gateway, it must still pass the means and merits tests. Whether or not the conduct complained of was dishonest or merely deliberate, it must still amount to an abuse of position. Lewison LJ then went through various arguments that had been put before concluding that “abuse of power” is

a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is. (para 30)

Comment

This is a not particularly helpful judgment. It restricts the scope of what will be funded under para 21, but doesn’t do so in a way that gives any degree of certainty about what is or is not to be funded. It’s clear that what will be required is something more than a mere allegation of tortious conduct or other unlawfulness. The conduct complained of must amount to an abuse of position or power; but what that is will depend on the individual case and the allegations made. The LAA’s previous interpretation that dishonesty is always required would seem to go too far, but Dingemans J’s view that as long as the act was deliberate it was enough didn’t go far enough.

 

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Deadline for duty solicitors

Following the Lord Chancellor’s abandonment of the two tier crime tender last week, the LAA will be extending existing 2010 crime contracts until March next year while a replacement process is designed. The LAA has written to suppliers confirming that new entrants awarded a 2015 own client contract will be able to provide services under a contingency 2010 contract in the meantime.

The LAA will therefore be drawing up new duty solicitor rotas running from April to September 2016. The deadline for submitting any amendments or notification of new duty solicitors is Friday 12 February. The form and more information can be found here.

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MoJ abandons crime contracts tender

Michael Gove has just made a written statement to Parliament confirming

  • Two tier contracts will not go ahead
  • The second fee cut will be suspended for a year from April 2016
  • There will be discussions about a new model from April 2017 and existing contracts will be extended in the meantime

This is the crucial part of the statement:

Firstly, thanks to economies I have made elsewhere in my department HM Treasury have given me a settlement which allows me greater flexibility in the allocation of funds for legal aid.

Secondly, it has become clear, following legal challenges mounted against our procurement process, that there are real problems in pressing ahead as initially proposed.

My Department currently faces 99 separate legal challenges over the procurement process, which has required us, anyway, to stay the award of new contracts at least until April.

In addition, a judicial review challenging the entire process has raised additional implementation challenges.

Given how delicately balanced the arguments have always been, how important it is to ensure we maintain choice and quality in the provision of legal services, how supportive HMT have been of our broader reform agenda and how important it is to provide as much certainty as possible in the face of legal challenge, I have decided not to go ahead with the introduction of the dual contracting system. I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year. As a consequence of these decisions the new fee structure linked to the new contracts will not be introduced.

My decision is driven in part by the recognition that the litigation will be time consuming and costly for all parties, whatever the outcome. I do not want my department and the legal aid market to face months if not years of continuing uncertainty, and expensive litigation, while it is heard.

The Legal Aid Agency will extend current contracts so as to ensure continuing service until replacement contracts come into force later this year. I will review progress on joint work with the profession to improve efficiency and quality at the beginning of 2017, before returning to any decisions on the second fee reduction and market consolidation before April 2017.

By not pressing ahead with dual contracting, and suspending the fee cut, at this stage we will, I hope, make it easier in all circumstances for litigators to instruct the best advocates, enhancing the quality of representation in our courts.

I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.

We have an ambitious programme of reform to our courts planned for the rest of this Parliament. It is designed to make justice swifter and more certain. The reforms to our legal system, including taking more work out of courts, moving from a paper-based system to a digital platform, tackle unnecessary costs and reduce harmful delay. Criminal legal aid solicitors perform a vital role in our justice system and these reforms will need the support of all in the legal profession. But these reforms also provide an opportunity for the legal profession to offer better access to higher quality advice and representation

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Of residence, reviews and reverses

There was a series of press reports at the weekend, all setting out the government’s aim to introduce the civil legal aid residence test by the summer. This follows the Lord Chancellor’s win on its legality in the Court of Appeal, and is said to be being backed by the Prime Minister himself, in reaction to recent controversy about claims against British forces arising out of Iraq and other conflicts.

In a debate in Parliament this week the legal aid minister confirmed that the government does indeed intend to introduce the residence test. The LAA has told the representative bodies that it will come in by the summer. There won’t be a formal consultation on the draft regulations, but there is to be some consideration of how it will operate in practice. If the test has to be introduced at all, it is to be hoped that the burdensome checks proposed for all applicants for civil legal aid will have reduced from the last time the test was proposed.

Meanwhile, Labour’s Access to Justice Commission met for the first time this week as part of its attempt to devise a new legal aid policy. There’s an interesting blog from one of the members of the commission, the former Court of Appeal judge Sir Henry Brooke.

Finally, despite being forced to concede that it wrongly marked at least one bid, the LAA seems determined – or intends to appear so publicly – to press ahead with two tier criminal contracts. But in view of recent rumours that it might be about to back down, the Law Society has written to the minister seeking clarification.

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Mediation providers get more time

The Legal Aid Agency is changing the submission date for mediation claims from the 10th of the month to the 20th. This brings the submission date in line with crime and civil claims. The next claim is now due by 20th January 2016.

You should have received official notification from the LAA; but any queries should be sent to Reconciliation@legalaid.gsi.gov.uk

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News miscellany

A round up of some recent news:

Mandatory CCMS roll out

The LAA has announced that CCMS won’t be made mandatory until 1 April 2016 – but the original date of 1 February stays in place for Special Children Act cases.

Legal aid statisitics

The latest legal aid statistics were published this week and made for the usual depressing reading. Crime expenditure and workload continues to fall, as does Legal Help. Two bright spots were that grants of civil certificates were up 9%, and the grant rate for exceptional funding has risen to almost half of applications – though the numbers of applications hasn’t increased on the same period last year.

Waiting for legal aid not a good reason for delay

Last week the Court of Appeal gave judgment in Kigen & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 1286, a case in which the appellants appealed against refusal to grant an extension for lodging a judicial review application. The Court made clear that delays caused by waiting for decisions of the Legal Aid Agency will no longer be an acceptable reason for delay or for the grant of an extension of time.

Moore-Bick LJ said that “It may be that, in the light of the older authorities to which I have referred, solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result. That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf. Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused.” (para 29).

Leave was granted in this case, exceptionally, because of that general impression. But the court made clear that, in future, delays in getting legal aid granted will not be a good reason for delay. There’s more analysis of this case at the Civil Litigation Brief blog.

Costs Protection in the Upper Tribunal

Free Movement has a post that’s worth reading on costs protection for legally aided clients in immigration judicial review proceedings before the Upper Tribunal.

House of Lords debates legal aid cuts again

The House of Lords debated the cuts to legal aid again last week. Once again various members set out the problems the cuts have caused, and once again the government promised a review of LASPO’s implementation but made no promise of changes. The transcript of the debate is here.

Not for profit legal aid providers

The MoJ released a survey of NfP providers this week. The survey found that the NfP sector had halved in size since the last major study ten years ago; unsurprising, perhaps, since 90% of NfP providers stopped doing legal aid work as a result of the LASPO cuts.

Earnings from crime 

The MoJ has also published a study of earnings from the Crime AGFS. It shows that average earnings have declined in recent years, from £97,000 to £90,000 for “notionally full-time” advocates. Advocacy has been protected from the recent fee cuts affecting police station and litigation work.

 

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Crime contracts verification deadline 8 December 2015

The Legal Aid Agency has written to all successful bidders asking them to submit verification evidence by 23.59 on Tuesday 8 December, if they want to do work from the revised new Own Client and Duty contract start date of 1 April 2016.

Firms that have already been asked to submit some verifiation evidence for their successful Duty bids are being asked for additional information, including completed Supervisor forms, whether for ‘crime only’ or prison law as part of their own client contract bid. There is only one Supervisor form for ‘crime only’ as opposed to the five forms under the 2010 contract. Forms can be found here.

The LAA will also carry out further checks on staffing, offices and implementation of the delivery plan submitted by successful bidders, in the run up to 1 April, where it can start Duty Contracts from that date.

1 April 2016

The LAA says it intends to start the new Own Client and Duty Contracts from 1 April 2016 where possible; but where this is not possible due to ongoing litigation, it will allocate work under ‘contingency duty rotas’ to those holding Own Client Contracts. Firms can opt out of being included on these rot as if they do not want to do duty work.

Further information

The Law Society has provided some useful information, including provisions between January and April for new firms not holding a 2010 Contract.

 

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