Neither compassionate nor humane

The first two reported cases of the year in the Family Court are both concerned with the difficulties litigants – not to mention practitioners, and the courts – are now faced with when trying to navigate the legal aid system. The first – about which we posted here – concerned an unrepresented father who couldn’t get legal aid despite needing to cross-examine a child who had accused him of abuse, leading to the court to order that he be funded outside the legal aid scheme.

The second case, D (A Child) (No 2) [2015] EWFC 2, chronicles the attempts of a couple faced with the adoption of their children to obtain legal aid. The Annex to the judgment, which is simply a chronology of those attempts, is more than twice as long as the judgment itself. Giving judgment, the President, Sir James Munby said (para 11):

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Filed under Civil, Family, Housing, Immigration, Policy, Social welfare

Court orders funding for litigant ineligible for legal aid

In what appears to be the first order made under what we called the “shadow legal aid scheme” mooted in Sir James Munby P’s judgment in Q v Q, HHJ Bellamy (sitting as a High Court Judge) has made an order that the Court Service fund an unrepresented father who would otherwise have to cross-examine a child who has made allegations of abuse at a fact finding hearing – K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1. In discussing Q v Q and making his order, HHJ Bellamy set out what he considered to be the principles to be applied, thus (para 74):

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Filed under Civil, Family, Policy

LAA announcement on Crime tender

The LAA has announced that, following the injunction and interim relief suspending the tender, granted on 23 December, the tender is suspended.

Potential bidders cannot access the tender documentation on the Bravo portal during the period of suspension. However, documentation can still be found on the LAA’s website. This includes the final FAQs and the answers to questions submitted by the CLSA and LCCSA.

The rep bodies are appealing for funding to continue the litigation. The substantive hearing is listed for 15-16 January. You can contribute here.

If the LAA can resume the tender after the hearing, it will ensure there is a nine week tender period in total, so a new tender deadline could be from mid February, depending on the judgment.

In the meantime, the advice is to prepare for the tender to be resumed. Most firms report that drafting answers to the tie-breakers and award questions is more challenging than they anticipated and takes a considerable amount of time.

Our tips are

  • Read the IFA and FAQs and check the 2015 Duty Contract where necessary
  • Use short words
  • Don’t use words like ‘however’ and ‘therefore’
  • Use your local knowledge of the PA to strengthen your bid with real life examples
  • Use examples of what you have achieved in the past
  • Note FAQ 16.19 – you cannot cross refer between answers, each one must be complete in itself
  • Don’t repeat names in full, use initials after the first time

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Court of Appeal finds exceptional funding guidance to be unlawful

In Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622, the Court of Appeal considered the Lord Chancellor’s appeal against the High Court’s earlier decision that the exceptional funding guidance was unlawful, and that refugee family reunion was in scope of Schedule 1 of LASPO.

The Court of Appeal refused to follow the approach of the High Court either in Gudanaviciene or the earlier cases of M v Director of Legal Aid Casework [2014] in construing s10 of LASPO (the section dealing with exceptional cases. Lord Dyson MR, giving the judgment of the Court, set out the test to be applied thus:

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Filed under Civil, Immigration, Legal aid bill, Policy

Civil tender FAQs published

The LAA today published the FAQs for the current civil tender for clinical negligence, public law and actions against the police etc contracts. Bidders will need to consider them carefully before submission of the tender.

The tender closes at noon on 23 January 2015.

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Filed under Actions Against the Police, Civil, Clinical Negligence, LASPO, Public Law

High Court suspends crime duty tender

The High Court today heard an application for an interim injunction in the judicial review of the crime duty tender brought by the CLSA and the LCCSA with the support of the Law Society (the Society’s own separate judicial review application was issued yesterday).

The Court granted an injunction suspending the tender process pending a full hearing of the claim, due on 15 and 16 January.

The MoJ has confirmed it is not appealing today’s injunction, but will contest the full hearing in the new year. Meanwhile, the LAA issued a notice to bidders suspending access to the e-tendering portal, though giving very little other information.

Practitioners would be well advised to continue their preparations for tendering and bid submission. The outcome of the full JR is not yet known and today’s injunction isn’t a guarantee that it will succeed – if it doesn’t, there is a risk that an already tight timetable might become even more difficult.

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142 pages of crime tender FAQs

The Crime Duty Contract tender is an extremely complex and challenging exericse. The LAA published the final ‘frequently asked questions‘ yesterday. They can be found at the top of the documents. If you are printing them off, watch out, as they change orientation from portrait to landscape at page 50, so you will need to change your printer setting part way through the document.

They add to the documentation which the LAA published in November, see our post. Bidders will also need to familiarise themselves with the 2015 Crime Duty Contract.

At 142 pages, they are just slightly shorter than the information for applicants and are essential reading for any firm which is working on its bid. The closing date for submitting a bid is 29 January at noon.

 

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