As we reported at the time, the MoJ re-introduced conditional payment for judicial review cases following the quashing of the old regulations by the High Court. This was done via the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 (which can be downloaded from the resources page), inserting a new Reg 5A into the Civil Legal Aid (Remuneration) Regulations 2013.
Reg 5A says:
5A.—(1) Where an application for judicial review is issued, the Lord Chancellor must not pay remuneration for civil legal services consisting of making that application unless—
(a) the court gives permission to bring judicial review proceedings;
(b) the court neither refuses nor gives permission to bring judicial review proceedings and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case, taking into account, in particular—
(i) the reason why the provider did not obtain a costs order or costs agreement in favour of the legally aided person;
(ii) the extent to which, and the reason why, the legally aided person obtained the outcome sought in the proceedings, and
(iii) the strength of the application for permission at the time it was filed, based on the law and on the facts which the provider knew or ought to have known at that time;
(c) the defendant withdraws the decision to which the application for judicial review relates and the withdrawal results in the court—
(i) refusing permission to bring judicial review proceedings, or
(ii) neither refusing nor giving permission;
(d) the court orders an oral hearing to consider—
(i) whether to give permission to bring judicial review proceedings;
(ii) whether to give permission to bring a relevant appeal, or
(iii) a relevant appeal, or
(e) the court orders a rolled-up hearing.
The Public Law Project would like to monitor the operation of Regulation 5A. They would like to collect examples of Legal Aid Agency decision-making, both in relation to the exercise of discretion to pay under Regulation 5A(1)(b) and the approach taken by the LAA listed in 5A(1)(c), (d) and (e).
In addition, they are interested in payments under certificates issued whilst the quashed regulation 5A was in force, i.e. 22 April 2014 – 19 April 2015.
Please email experiences and comments to: firstname.lastname@example.org
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