MoJ re-imposes conditional payments for judicial review

On Monday, the High Court quashed the regulations which introduced conditional funding for judicial review, following its judgment that the Lord Chancellor’s decision to introduce them was irrational.

Three days later, the Lord Chancellor today laid a fresh set of regulations, which come into force tomorrow (27 March). The new regulations re-impose conditional funding in exactly the same way as before, with the exception that payment is now permitted in two more situations.

The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 provide that, for all certificates granted applied for on or after 27 March 2015, payment for judicial review work done pre-permission is conditional on one of the following:

  • the court giving permission;
  • the defendant withdrawing the decision which the JR challenges, with the result that the court refuses permission or makes no decision on permission;
  • the court orders an oral permission hearing or an oral hearing of an appeal against a refusal of permission;
  • the court orders a rolled up hearing; or
  • the court neither grants nor refuses permission and the Lord Chancellor considers it reasonable to pay remuneration in the circumstances of the case, taking into account, in particular:
    • the reason why no costs order or agreement was obtained;
    • the extent to which, and why, the outcome sought was achieved; and
    • the strength of the application for permission at the time it was filed, based on the law and on facts which the provider knew or ought to have known at the time.

This is a slight extension from the irrational regulations of the situations in which payment may be made, to add oral and rolled up hearings and cases where the defendant concedes pre-permission. Whether that is enough to stave off any future challenge to these regulations will remain to be seen.

But it is most unfortunate that the Lord Chancellor decided to slip, unannounced, these regulations out on the last day Parliament was sitting before the election, and that the Legal Aid Agency hasn’t made any announcement or done anything to publicise a change in the legal aid scheme before it comes into force.

UPDATE 27 March

The transitional provisions say that the new regulations apply to certificates applied for from 27 March. Applications signed before 27 March and received by the LAA by 5pm on 31 March aren’t caught by the new regulations, nor are applications submitted through CCMS before 27 March or grants of emergency representation made before 27 March and received by the LAA, or uploaded through CCMS, within 5 days. Existing certificates to which new JR proceedings are added on or after 27 March will be subject to the new rules.

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Crime tender is on again

The practitioner groups failed in their Court of Appeal challenge to the MoJ’s Duty Contract tender today. You can read the judgment here.

The LAA immediately announced that the tender will re-open on Friday 27 March and close at noon on Tuesday 5 May 2015. More information is available here.

That means consideration of bids by the LAA will occur after the general election and there is a considerable difference between Conservative and Labour party policies in respect of Duty Contracts. Labour party policy has been clarified recently and shadow ministers have now confirmed more than once, that they would not retain the dual contract model.

Practitioners could find themselves in the unenviable position of going to a great deal of effort to prepare and submit bids, only for the tender to be scrapped, depending on the outcome of the election.

The litigation has had the effect of delaying the start date of the new contracts to 11 January 2016, which will require a further extension of the current 2010 contract beyond its five year term.

It seems unlikely that the process will conclude without further litigation, either by the representative bodies or individual firms.

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Legal aid cuts criticised again

The Parliamentary Joint Committee on Human Rights has released its report on UK compliance with the UN Convention on the Rights of the Child.

In a section on legal aid, which is critical of the scope cuts, exceptional funding and the residence test, it concludes:

The government’s reforms to legal aid have been a significant black mark on its human rights record during the second half of this Parliament. The two reports we agreed on the subject, at the end of 2013 and early in 2014, set out our concerns and what we feared might be the outcome of some of those reforms in terms of reducing access to justice for children. We acknowledge the few discrete areas in which the government helpfully accepted our concerns and reviewed elements of its reforms. However, the evidence we heard from the outgoing Children’s Commissioner for England and from all the NGOs we took oral evidence from provides firm grounds for a new government of whatever make-up to look again at these reforms and to undo some of the harm they have caused to children.

In a week in which Parliament is likely to dissolve ahead of the coming general election, this is a timely reminder of the effects LASPO has had, and the urgent need for a new government to review its effects – not just in respect of children, the focus of this report, but also more widely.

An election campaign gives those concerned with access to justice the opportunity to raise the profile of legal aid issues with canvassing politicians. A good place to start is LAPG’s excellent manifesto, launched last week, which sets out a range of measures a new government could adopt which would make a real difference.

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JR payment regulations quashed

Today the High Court decided on the appropriate relief following the granting of the judicial review of the regulations making payment in JR cases conditional on permission being granted.

The regulations were quashed – meaning that the amendments to the remuneration regulations which provided for conditional payment have been removed. The Lord Chancellor is reported not to be intending to appeal.

This leaves the original regulations – and original payment regime – intact. The LAA hasn’t yet said how it intends to implement the ruling, but it will have to introduce some mechanism for paying for cases where no claim was made, or discretionary payment refused, because of the quashed regulations. We will post when we know more.

In the meantime, congratulations to the claimants – Ben Hoare Bell, Deighton Pierce Glynn, Mackintosh Law, Public Law Solicitors and Shelter – as well as their representatives the Public Law Project, Martha Spurrier and Martin Westgate QC, and the Law Society which supported the action financially. All took significant risks in bringing the case, and deserve the thanks of the profession for achieving this result.

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Forms change on 1 April

The LAA has published preview copies of new forms in force from  1 April 2015. Not all forms are changing – you can see the full list on the LAA website here. In crime, only the LF3 is new. There is a new “counsel matrix” form for listing all fees paid to counsel in family cases.

The LAA says

The above civil claim forms and the controlled work forms are mandatory from 1 April 2015 but may be used now. However, we will not reject for using a previous version of the above forms unless there is a secondary reason for doing so

But the new LF3 must used from 1 April. Old forms signed after that date will be rejected. Old forms signed before 1 April will be rejected if not submitted before 30 April.

All forms, both new ones and those not changing, may be found here.

 

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Crime duty tender remains suspended

The Court of Appeal hearing in the continuing litigation, concluded yesterday. (see previous post).

The Master of the Rolls, Lord Dyson, who has taken a special interest in the case, said that judgment would be handed down as soon as possible, before Easter. In the meantime, the tender remains suspended.

It is worth noting that the issue of financial viability was extensively explored during the two day hearing. A key issue hanging over practitioners is whether the LAA will implement the promised further 8.75 % fee cut prior to the new contracts.

The more the tender is delayed, the more likely it appears that the LAA will need to implement a ‘plan B’ to ensure that new contracts can replace the existing contracts to deliver duty solicitor services in police stations and Magistrates’ Courts from July this year. However, as the ‘own client’ tender has already concluded and offers have been made, it appears that the LAA could use that as a basis for new duty contracts if it needs to do so.

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Justice Committee criticises legal aid cuts

The Commons Justice Committee published its report on the impact of the cuts to civil legal aid today.

It found

  • the cuts have failed to target help at those who need it
  • victims of domestic violence can’t get evidence they need to qualify for legal aid
  • the MoJ failed to ensure that those who need legal aid are able to access it
  • the exceptional cases scheme is failing
  • there has been a significant underspend on legal aid as a result
  • the cuts have reduced capacity among providers
  • there are more litigants in person, and more litigants who have difficulty representing themselves effectively
  • there has been a sharp fall in the use of mediation
  • the cuts have increased costs elsewhere and the MoJ can’t show that value for money

The committee’s summary of its comments on each of the MoJ’s four objectives is reproduced below, and the full report can be found here, with the oral evidence here and written evidence here.

Significant underspend

Since the reforms came into effect, there has been a significant underspend in the civil legal aid budget because the MoJ failed to ensure that those who are eligible for legal aid are able to access it. This has been partly been due to a lack of public information, including information about the Civil Legal Advice telephone gateway for debt advice, and the Committee recommends that the MoJ take prompt steps to redress this.

The Committee also concludes that the exceptional cases funding scheme has not worked as Parliament intended. It was supposed to act as a safety net, protecting access to justice for the most vulnerable. However, insufficient weight has been given to access to justice in the grant-making process and the Committee heard about a number of cases where it was surprising that such funding was not granted.

The Committee expects the MoJ to react rapidly to ensure that the scheme fulfils Parliament’s intention that the most vulnerable people are able to access legal assistance.

Necessary evidence

Although private family law was largely removed from the scope of legal aid, those who can provide evidence of domestic violence are still eligible. The Committee welcomes the MoJ’s efforts to ensure that healthcare professionals provide victims with the necessary evidence, but it remains concerned that a large proportion of victims do not have any of the types of evidence required, and about the strict requirement that evidence be from no more than 2 years ago, which the Committee considers should be a matter over which the Legal Aid Agency has discretion.

The inquiry found that the reforms have led to reduced capacity in the for-profit and not-for-profit legal advice and assistance sectors. Despite a warning from the Committee in a previous Report that advice deserts might be created, the Ministry of Justice did not carry out research into the geographical provision of legal advice before the reforms or the impact of the changes. The Committee recommends that work to rectify this should begin immediately.

Unrepresented litigants

The Government’s reforms have led to an increase in the number and a change in the profile of litigants in person: increasingly these are people who have no choice but to represent themselves, and who may thus have difficulty in doing so effectively: although many tribunals are accustomed to dealing with unrepresented litigants the courts have to expend more resources in order to assist them.

There has also been a sharp unintended reduction in the use of mediation. The Committee concludes that the end of compulsory mediation assessment, the removal of solicitors from the process and the lack of clear advice all contributed to the problem. However, the MoJ has acted swiftly to remedy this by setting up the Family Mediation Taskforce and accepting many, although not all, of its recommendations.

Value for money

The MoJ has not been able to demonstrate that it has achieved value for money for the taxpayer. Although significant savings have been achieved, efforts to target legal aid at those who most need it have focused on intervention aimed at the point after a crisis has already developed, rather than on prevention.

This has created knock-on costs, either because cases become more serious so become eligible for legal aid, such as house repossession cases, or because costs are shifted from the legal aid budget to other public services rather than reduced overall. The Committee believes that the MoJ must quantify these if it is to achieve its objective of better value for money.

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