On Friday last week, the High Court gave judgment in Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice  EWHC 35 (Admin), a challenge to the evidence requirements (contained in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012) that must be met before legal aid in private family law proceedings can be granted based on the domestic violence exceptions.
Despite evidence of the impact the restrictions were having in practice, the Court found that they were lawful. The principal argument put forward was that, in making the regulations, the Lord Chancellor was acting outside the scope of the powers granted under LASPO. Lang J (with whom Fulford LJ agreed) said:
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)  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):
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
In Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors  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  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:
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.