Tag Archives: judgments

by | December 18, 2015 · 6:22 pm

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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by | November 27, 2015 · 5:47 pm

Lord Chancellor wins appeal over residence test

In Public Law Project v The Lord Chancellor & Anor [2015] EWCA Civ 1193, the Court of Appeal reversed the decision of the High Court that the proposed residence test for civil legal aid would be unlawful. It found that such a test was within the Lord Chancellor’s powers and not unjustifiably discriminatory.

In a short and much narrower judgment than that of the High Court (which considered in detail the practical difficulties of access to legal aid the test would create), Laws LJ (with whom Kitchin and Christopher Clarke LJJ agreed) confined himself to considering whether the residence test was ultra vires LASPO, and whether its effects amounted to unlawful discrimination.

Laws LJ held that Part 1 of Schedule 1 of LASPO lists categories of law where the need for legal aid is pressing. But that does not mean that it is only open to the Lord Chancellor to restrict access to legal aid on the basis of lesser need. LASPO’s purpose is also to restrict legal aid on costs grounds, and it is open to the Lord Chancellor to remove access to the scheme on that basis. The objective of saving funds and making legal aid work more efficiently are objectives of LASPO. The residence test is within the scope of such a strategy, and within the scope of the powers permitted to the Lord Chancellor. s9(2)(b) read with s41(2)(b) of LASPO permits the Lord Chancellor to omit services for classes of individuals, and that is what the residence test does. It is not outside the powers granted by the Act.

On the issue of discrimination, it was common ground that the test is discriminatory; the question is whether it is justified. The saving of public funds is a legitimate aim, and the test is a proportionate means of achieving it. There is a distinction to be drawn between the duty of the State to ensure fair and impartial justice and a duty to fund legal representation. There is a wide discretion to decide what litigation is to be supported by public money, which is essentially a political question, and the restriction on it due to the residence test is not manifestly without reasonable foundation. Any requirement of European or human rights law for access to legal aid is met by exceptional funding under s10 LASPO.

Comment

The Public Law Project’s solicitors, Bindmans LLP, have issued a statement regretting the ignoring of evidence of the practical difficulties the test would cause. They will seek leave to appeal to the Supreme Court.

It is slightly strange that Laws LJ focussed on the statutory purpose of LASPO as being in part about controlling and reducing the cost of the scheme, and how the residence test was a lawful part of that strategy. Similarly, on discrimination, he described the legitimate aim sought as being the saving of costs.

But the residence test, according to the original consultation and impact assessment, was never about cost. It was projected to save very little. The original justification for the test – scarcely touched on by the Court of Appeal – was public confidence in the operation of the legal aid scheme. Moses LJ, in the High Court, described that as amounting to “little more than reliance on public prejudice”. Laws LJ disagreed, considering it possible for reasonable people to disagree about the merits of the test. But he didn’t address at all whether that was a legitimate aim, whether the test was a proportionate means of achieving it, or whether it fell within the statutory purpose of LASPO.

Unless the Supreme Court is persuaded to deal with any appeal quickly, the Lord Chancellor now has the power to introduce a residence test. Having the power is not, of course, the same as exercising it. The new Lord Chancellor has struck a noticeably more thoughtful and liberal tone than his predecessor. It is not too late for him to consider whether the many injustices that would result from the residence test – for those caught by it, and for those not caught who can’t prove entitlement – require it to be added to the lengthening list of Grayling measures quietly abandoned.

 

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by | October 11, 2015 · 7:30 pm

News from LAPG conference

As always, LAPG conference was packed with essential information, inspiring speeches (particularly Richard Miller from the Law Society and Steve Hynes from LAG) and practitioners sharing hints and tips and generally networking. Lawyers could get their fix of black letter law as well. People who couldn’t make it were able to follow on Twitter – we even started trending! Who says people aren’t interested in legal aid?

Hugh Barrett, Director of Legal Aid Commissioning at the Legal Aid Agency updated us on the government’s appeal on the introduction of a residence test (which we covered here). It will be heard next week and judgment is expected before Christmas.

He also said that news on the 2013 contract (which covers family, housing and debt, and immigration/asylum) will be available in the next month; but it is likely that the contract will be extended.

Best tips were from Wendy Hewstone (Managing Partner at Access Law) who said taking credit cards was the best thing they have done recently to improve cash flow and David Gilmore (DG Legal) who did a survey of 38 firms out of hours and found only 2 had any kind of telephone answering service – an easy way of improving client access.

Lord Bach updated us on the Labour party’s review of legal aid and presented certificates to those present who had completed LAPG’s Certificate in Practice Management. The pilot course had funding from the UK Commission for Employment and Skills which enabled LAPG to create 60 hours of management training which is unique in being tailored to legal aid practice (whether in private practice or not for profit).

The course covers:

  • People management
  • Business and strategic planning
  • Financial maangement
  • Managing legal aid contracts
  • Compliance, risk management and data security
  • Marketing
  • And provides access to resources through the Chartered Management Institute

People said they used tools from the course straight away – creating dashboards for management information and business planning which helped with Lexcel assessment. Comments from the first cohort included: ‘I didn’t think I needed training before I did the CPM but looking back, I can see I did’, ‘Has given me more confidence’ . The time management module by Matthew Moore was particularly popular – and it’s a free download.

To express an interest in the course for early 2016 (likely cost £1500), email Carol Storer carol.storer@lapg.co.uk.

 

 

 

 

 

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by | May 22, 2015 · 1:46 pm

“Shadow legal aid scheme” blocked by Court of Appeal

In what we called the development of a “shadow legal aid scheme”, the President of the Family Division, Sir James Munby, said in Q v Q that in certain circumstances the Court could order that a party not eligible for legal aid be funded by HMCTS. In the first use of that power, HHJ Bellamy, in K & H, ordered that representation of a father be funded where serious allegations had been made against him and where he would otherwise have to cross-examine in person the child who made the allegations.

The Lord Chancellor appealed that decision, and the Court of Appeal has today given judgment – Re K & H (Children) [2015] EWCA Civ 543 (case now on Bailii, and the judgment can also be downloaded from the Coram Childrens Legal Centre website – CCLC, and the Association of Lawyers for Children, intervened in the case).

Giving judgment, the Master of the Rolls Lord Dyson said that there was no such power:

31. As the judge acknowledged, LASPO provides a comprehensive code for the funding of litigants whose case is within the scope of the scheme.  It is a detailed scheme.  I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO.  The court must respect the boundaries drawn by Parliament for public funding of legal representation.  In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

…

37. For these reasons, I consider that section 1 of the 2003 Act does not give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings. The provision of legal services cannot be described as coming within the scope of the duty to ensure that there is an efficient and effective system to support the carrying on of the business of a court.

…

41.The fact that costs associated with court hearings are on occasion met by HMCTS pursuant to the Lord Chancellor’s general duty under section 1 of the 2003 Act (to ensure that there is an effective and efficient system for the carrying on of the business of the family court) is not material to the funding of legal representation.

42. Most (if not all) of the considerations which I have mentioned above in relation to section 1 of the 2003 Act also lead me to conclude that section 31G(6) of the 1984 Act cannot be invoked to require the Lord Chancellor to fund legal representation to a litigant who does not qualify for legal aid because he does not satisfy the means test. Ms Whipple makes these further points which I accept.  First, section 31G(6) derives from section 73 of the Magistrates’ Courts Act 1980 which itself derives from the identical provision in the Magistrates’ Court Act 1952.  It enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness.  It cannot, on any plain reading, be interpreted as giving the court power to order funding of legal representation for a party.

43. Secondly, on a plain and natural interpretation of the language of section 31G(6), it is predicated on the party not being represented. If the party were to become legally represented, section 31G(6) would fall away.

44. Thirdly, the way in which “cause to be put” has historically been applied in practice is that the justices’ clerks in the magistrates’ courts could be asked to put questions to a witness on behalf of a party, where it was not possible for the party themselves to do so. Following the reorganisation of the Family Court, the justices’ clerks are now available to perform this function in any part of the Family Court and not only when magistrates are hearing the matter.

45. It follows that I respectfully disagree with what the President said at para 79 of his judgment in Q v Q. It would seem that he did not have the benefit of the detailed submissions which have been made to this court.

46. I conclude, therefore, that the judge had no power to make the order that he made and I would allow the appeal on the first ground. It is not therefore necessary to deal with the other grounds of appeal.  But I should say in relation to the second ground that I did not understand it to be contended by anyone that the imposition of a means test is of itself contrary to the Convention (it plainly is not).  I propose to say nothing on the question whether the judge was wrong to conclude that the father could not afford to pay for his legal representation (the third ground).  We heard a good deal of argument on the fourth ground of appeal, viz that, unless the judge’s order were to stand, there would be a violation of the article 6 rights of the father and the article 6 and 8 rights of K and H.  In deference to counsel’s submissions and in view of the importance of the issues raised, I propose to say something about this ground of appeal.

Dyson MR therefore went on to consider the Convention rights issues. But he concluded that, in most cases questioning by the Judge or by a Justice’s Clerk (who can be made available even in a case not heard by Magistrates) would be sufficient and not a breach of Article 6 or 8 – and that it would be sufficient in this case. He conceded that in some very complex and serious cases that would not be appropriate, and such a case might amount to a breach. He called for there to be a statutory scheme created to allow for the appointment of a legal representative in such cases.

Comment

This judgment firmly puts to rest the idea, proposed by Munby P and first implemented by HHJ Bellamy, that cuts to legal aid can be circumvented in appropriate cases by finding funds from some other source. The courts simply don’t have the power to require public funds to be spent in that way when there is a comprehensive statutory scheme which provides for cases which can – and cannot – be funded. That might, in some cases, result in a breach of Article 6 or 8. A fall-back statutory scheme in such cases would be useful – and the interveners in this case have called for one to be enacted. But it needs to be a statutory scheme, and it would be surprising if there is significant political appetite for creating what would amount to a second legal aid scheme to fill (some of) the gaps left by cuts to the first.

The government is likely to argue that the exceptional funding scheme is there to cater for cases where a lack of funding would breach Article 6 or 8. It is worth noting that the father in K & H was not in any event a victim of the LASPO cuts – he was financially ineligible, and so would never have got legal aid, even if LASPO had never been enacted. So he could not have got exceptional funding, which is means tested. As Dyson MR pointed out, the ECtHR has said that the imposition of a means test is not incompatible with Article 6.

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by | May 17, 2015 · 10:39 am

Legal aid for contempt in the County Court

In Brown v London Borough of Haringey [2015] EWCA Civ 483 the Court of Appeal considered the availability of legal aid for contempt proceedings in the County Court. It was considering an appeal against the committal for contempt of an elderly man who was found to have breached anti-social behaviour injunctions. In the County Court, he was unrepresented following the failure of his solicitor’s efforts to obtain legal aid.

The solicitor had applied both to the LAA, which said it was a criminal matter and to apply to the Court; and to the Magistrates Court that dealt with legal aid applications in the local area, which said it was a civil matter and to apply to the LAA.

Giving judgment, McCombe LJ analysed what he said was “disgracefully complex” legal aid legislation. The relevant analysis is set out at paras 26 to 37. McCombe LJ concluded that this was indeed a criminal matter (that is, that it fell within the criminal legal aid scheme and the solicitor needed a criminal contract). He approved the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning and anor [2013] EWHC 3390 (QB).

In cases in the Crown Court, High Court and Court of Appeal, the Court has the power to grant legal aid itself (which the Court of Appeal did, to allow Mr Brown’s representatives to be funded). But the County Court has no equivalent power. These are criminal applications which have to be made by criminal practitioners using criminal application forms. See also our posts on funding for new style anti-social behaviour injunctions here and here – this work can also be done by civil practitioners if the LAA is willing to grant an Individual Case Contract.

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by | March 24, 2015 · 9:52 pm

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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by | March 10, 2015 · 8:50 pm

“Justice has had to be sacrificed on the altar of public debt”

Those words, a criticism of the removal of legal aid in private law family proceedings, came not from a legal aid lawyer or politician opposed to the cuts. They were said, today, by a High Court Judge. Giving judgment in MG & JG v JF [2015] EWHC 564 (Fam), Mostyn J expressed himself in unusually strong terms about the effect of a lack of legal aid on the litigants in the case before him, and more broadly.

The facts of the case are that a lesbian couple had a child fathered by a donor, who had contact with the child in his early years, until the relationship between the mothers broke down. He issued an application for contact. He is well off, if not wealthy, and the mothers are both relatively impecunious and would have been eligible for legal aid had it been available. Mostyn J considered that the interests of justice required that the mothers be represented and that the only source of funds was the father. He therefore ordered the donor father to pay the bulk of the costs of the proceedings, both his own and that of the mothers. “It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.” (para 36).

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by | March 2, 2015 · 10:25 pm

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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by | January 26, 2015 · 8:43 pm

Domestic violence gateway not unlawful, says High Court

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 [2015] 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:

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by | January 11, 2015 · 1:00 pm

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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