Conditional funding for judicial review irrational, High Court says

Part of the government’s “transforming legal aid” agenda was to “restore public confidence” in the operation of judicial review by ensuring that only meritorious cases were brought. The method chosen to achieve that was to make payment for judicial review work conditional on permission being granted by the court (with limited exceptions, at the discretion of the LAA). Regulations to that effect came into force on 22 April 2014.

Four solicitors firms – Ben Hoare Bell, Deighton Pierce Glynn, Mackintosh Law and Public Law Solicitors – and the housing charity Shelter challenged the regulations. The claimants represent the range of judicial review work, covering between them work across categories such as immigration, housing, community care, public law and actions against the police, and were supported by witness evidence from a number of other organisations.

The High Court gave judgment today in Ben Hoare Bell Solicitors & Ors, R (On the Application Of) v The Lord Chancellor [2015] EWHC 523 (Admin). The grounds of challenge were that a) the Lord Chancellor had no power to make the regulations introducing conditional funding; b) the regulations were inconsistent with the statutory purpose of LASPO; and c) that they would have a chilling effect on access to the courts, because providers would not be able to risk taking on work without payment.

The court held that the regulations were not made ultra vires, but they were incompatible with the statutory purpose. That being the case, there was no need to decide the chilling effect point, though Beatson LJ said that, had that been decided, the result would have been that the high threshold needed to show a chilling effect had not been met.

The outcome of the case is therefore that the regulations implementing conditional funding have been found to be unlawful. Giving the judgment of the court, Beatson LJ focused on the Lord Chancellor’s purpose in bringing in the regulations, which was to incentivise lawyers to focus efforts only on meritorious cases by ensuring that payment would not be made (subject to discretionary exceptions) in cases where the merits were not such as to lead to a grant of permission.

Beatson LJ identified a number of scenarios where a case may never reach the permission stage, or permission might be refused, because of factors wholly outside the control of the claimant or his representatives. These include a withdrawal of the decision under challenge by the defendant, and a decision by the Court to consider permission orally or at a rolled up hearing. There may be a number of reasons why these situations occur unconnected to the merits of the claimant’s case, or because the claimant has not a weak but a strong case. It did not appear from the consultation documents that the Lord Chancellor understood the way rolled-up hearings are used.

As a result, making payment conditional on a grant of permission goes beyond a rational or proportionate connection with the stated aim, that of focussing providers on the merits of the claim. In some cases – such as where a defendant concedes or withdraws the challenged decision – the solicitor cannot be said to have misjudged the merits. In others, where the court directs an oral or rolled-up hearing significantly increases the amount of costs at risk and does so in an unpredictable way dependent on the decisions of the courts and the actions of third parties, not on the judgement of the claimant’s lawyers – and only after proceedings have been issued. Allowing a discretion to be paid where permission is not granted does not go far enough to cure the defects. And whether payment is guaranteed before the event, or allowed on a discretionary basis afterwards, it still does not serve the incentivising purpose.

The court also noted, but did not hear full argument on and did not finally decide, that the regulations may conflict with a solicitor’s professional duties. Legal aid regulations provide that a solicitor’s retainer continues until a certificate is withdrawn by the LAA, and the LAA can require a solicitor to continue to act while a certificate is in force. Inadequacy of fee is not a reason, under legal aid contracts, which allows the termination of a retainer. This could result in a situation where a provider is locked in to continuing with a case without payment and without the ability to terminate the retainer or withdraw from the certificate.

Overall, the court’s conclusion was that the conditional fee regulation extended beyond circumstances which were rationally connected to the stated purpose which led to its introduction. It was therefore inconsistent with the LASPO scheme.


This represents yet another defeat for the Lord Chancellor’s attempts to impose further cuts that go beyond those envisaged by LASPO at the time it was passed. We noted in our comment on the domestic violence gateway challenge that there was a difference in the construction of the statutory purpose of LASPO found in that case by Lang J and in the residence test case by Moses LJ. This case seems to be more consistent with the approach of Moses LJ and perhaps therefore gives some hope to the prospects of a successful appeal in the domestic violence gateway case.

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Filed under Actions Against the Police, Civil, Community Care, Costs, Housing, Immigration, LASPO, Public Law

Anti-social behaviour orders – regulations and training material published

Further to our post on funding for new-style anti-social behaviour orders, the regulations and contract amendments have now been published:

They come into force on 23 March 2015. Links on our Resources page. The LAA has also made available a short online training course.

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Legal aid in mental health cases

Our thanks to Mental Health Law Online for drawing our attention to AMA v Greater Manchester West Mental Health NHS Foundation Trust and Others (Mental health : All) [2015] UKUT 36 (AAC). This was a case in which the Upper Tribunal gave some guidance on the respective roles of legal representatives and welfare representatives and the capacity of a patient to make such appointments. At the start of his decision, Mr Justice Charles, the President, said this:

3.     The Appellant attended the hearing and was represented by solicitors and counsel who acted pro bono because he had been refused funding by a decision of the Special Controls Review Panel of the Legal Aid Agency dated 7 October 2014 and sent on 14 October 2014 (six days before the hearing).  I am very grateful to them for so acting, as no doubt are AMA and his mother.  In my view, others are also likely to be grateful because, in agreement with the FtT judge and them, and in disagreement with the Legal Aid Agency decision maker, this appeal is one that raises issues on which it is appropriate for the Upper Tribunal to give guidance.  Understandably there is no prospect that either AMA or his mother could themselves advance the relevant legal arguments.

4.       It is troubling, and this is not the first occasion that I have come across this, that legal aid is refused on appeals to the Upper Tribunal where it and the FtT consider that guidance is appropriate and absent representation pro bono the parties to the appeal and the Upper Tribunal would not have the benefit of necessary representation and argument.  Given that one of the functions of the Upper Tribunal is to give guidance that can be applied by the FtT in cases where parties may well not be represented I invite the Legal Aid Agency to consider whether in such “guidance cases” it should factor in and so expressly deal with the view of the judge (of the FtT or the Upper Tribunal) giving permission to appeal that the case is a “guidance case”.

This is therefore one of a number of cases, across various areas of the law, where senior members of the judiciary have expressed concern about decisions made to refuse funding – see further examples here and here (family),  and here (welfare benefits).

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LALYs launched

The annual Legal Aid Lawyer of the Year awards were launched last week, and nominations close on 27 April 2015. The ceremony is on 1st July. There are several new awards this year, and details and a nomination form can be found on the LAPG website.

The full list of awards is:

  • Children’s rights
  • Criminal defence
  • Family legal aid
  • Family mediation
  • Housing
  • Public law
  • Social and welfare
  • Legal aid newcomer
  • Legal aid barrister
  • Legal aid firm / NfP agency
  • Access to Justice through IT

There will also be an award for outstanding achievement, though nominations are not sought for that one. It appears that the immigration award has been withdrawn this year, and subsumed into the social and welfare award.

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Crime tender remains suspended

The Court of Appeal will hear the appeal brought by the representative bodies against the decision in the recent Crime JR on 10 and 11 March. See our previous post.

In the meantime, the tender remains suspended. We will provide more information in due course.


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Lord Chancellors Guidance on funding for inquests unlawful

In Letts, R (On the Application Of) v The Lord Chancellor & Anor [2015] EWHC 402 (Admin) Mr Justice Green considered the Lord Chancellor’s Guidance on Exceptional Funding (Inquests), which is statutory guidance to caseworkers considering applications for exceptional funding for representation at inquests.

After considering carefully the content of the guidance in light of the obligations of the state under Article 2 ECHR, and reviewing the law relating to Article 2 Green J concluded that:

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Crime tender JR fails

Judgment was handed down yesterday in the JR taken by the crime practitioner representative bodies.  The challenge was not successful.

Although there was some criticism of the Legal Aid Agency’s handling of issues in relation to financial support for firms, Lord Justice Laws said: ‘I should conclude without hesitation that the scheme is proportionate. It is accepted on all hands that consolidation in the legal aid market is needed, if legal aid is to be provided at reduced fees. It may reasonably be concluded that this is a proper way to achieve it.’

Permission to appeal was refused but the injunction suspending the tender remains in place until 27 February 2015, to enable the claimants to seek leave to appeal from the Court of Appeal. The grounds of appeal can be found here.

In the meantime, the LAA has stated that it intends to resume the tender as soon as possible.

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