Tag Archives: judicial review

Conditional payment for JR – can you help PLP?

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: p.brendon@publiclawproject.org.uk

NB – our email subscribers received an incorrect version of this post on Thursday. Please disregard the earlier email – our apologies.


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MoJ re-imposes conditional payments for judicial review

On Monday, the High Court quashed the regulations which introduced conditional funding for judicial review, following its judgment that the Lord Chancellor’s decision to introduce them was irrational.

Three days later, the Lord Chancellor today laid a fresh set of regulations, which come into force tomorrow (27 March). The new regulations re-impose conditional funding in exactly the same way as before, with the exception that payment is now permitted in two more situations.

The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 provide that, for all certificates granted applied for on or after 27 March 2015, payment for judicial review work done pre-permission is conditional on one of the following:

  • the court giving permission;
  • the defendant withdrawing the decision which the JR challenges, with the result that the court refuses permission or makes no decision on permission;
  • the court orders an oral permission hearing or an oral hearing of an appeal against a refusal of permission;
  • the court orders a rolled up hearing; or
  • the court neither grants nor refuses permission and the Lord Chancellor considers it reasonable to pay remuneration in the circumstances of the case, taking into account, in particular:
    • the reason why no costs order or agreement was obtained;
    • the extent to which, and why, the outcome sought was achieved; and
    • the strength of the application for permission at the time it was filed, based on the law and on facts which the provider knew or ought to have known at the time.

This is a slight extension from the irrational regulations of the situations in which payment may be made, to add oral and rolled up hearings and cases where the defendant concedes pre-permission. Whether that is enough to stave off any future challenge to these regulations will remain to be seen.

But it is most unfortunate that the Lord Chancellor decided to slip, unannounced, these regulations out on the last day Parliament was sitting before the election, and that the Legal Aid Agency hasn’t made any announcement or done anything to publicise a change in the legal aid scheme before it comes into force.

UPDATE 27 March

The transitional provisions say that the new regulations apply to certificates applied for from 27 March. Applications signed before 27 March and received by the LAA by 5pm on 31 March aren’t caught by the new regulations, nor are applications submitted through CCMS before 27 March or grants of emergency representation made before 27 March and received by the LAA, or uploaded through CCMS, within 5 days. Existing certificates to which new JR proceedings are added on or after 27 March will be subject to the new rules.

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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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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.

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Exceptional case funding

Exceptional case funding under s10 of LASPO was designed to provide advice and representation to people whose human rights are breached or at risk; but whose cases are outside the scope of legal aid as set out in schedule 1 of the Act. However, an astonishingly small number of cases have actually been funded. 1083 cases were determined by the LAA from April – December 2013 (inclusive), of which 35 were granted. 21 of these were for inquests, 8 in Family, 3 in Immigration, 1 in Housing, and 2 ‘other’.

Judgements in recent cases add to the pressure which has been applied by the Public Law Project (PLP) in its ‘IS’ judicial review.

PLP’s challenge

In April, Ousely J ordered that the systemic elements of the case, relating to the operation of the exceptional funding scheme, should be dealt with in a separate hearing. The issues in the ‘IS’ case itself, relating to article 8 in the immigration context, were heard together with five linked cases by Collins J in May. Judgment is expected in the week commencing 9 June.

Meaning of exceptional

Paragraph 58 in the judgment in M v Director of Legal Aid Casework and Ors [2014] EWHC 1354 (Admin) helpfully clarifies that a case does not need to be highly unusual or very much out of the ordinary to qualify for exceptional case funding. You can read a transcript here. The word ‘exceptional’ refers to a case that is an exception to the general regime of the Act.

The case also highlights how important it is for practitioners to address the standard merits criteria as well as the criteria for s10 funding, and indicates that the LAA should consider the exceptional case criteria in all such applications, even where it considers the standard merits test is not met.

Exceptional case funding in family cases

JG v The Lord Chancellor and Ors [2014] EWCA Civ 656 is an important case in relation to legal aid funding for experts. The COA decided that the then LSC was wrong to refuse to pay the whole of the cost of an expert’s report where it was considered to be genuinely the child’s report alone. You can read a transcript here.

We understand that James Turner QC has suggested that the discussion of article 6 and article 8 rights in the judgment may be a ‘toe in the door’ for exceptional case funding in other family law cases where a party cannot represent him/herself effectively and so legal aid may be required to provide access to justice.

Help with exceptional funding cases

PLP has some funding to help practitioners and members of the public make applications for exceptional case funding. You can find more information here.

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Important payment changes regulations published

Three important new sets of regulations were published this week.

Links to all regulations are also on our LASPO Resources page, and the Handbook Updates page will contain relevant updating material shortly.

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Further consultation on JR costs launched

As promised yesterday, the government today launched a consultation on payment for judicial review cases. Part of a wider consultation on limiting the scope of JR, it is proposed that payment of solicitor and counsel fees would be conditional on permission being granted, as was originally suggested. However, in addition to that, there would be a discretionary power for the LAA to pay in cases that do not reach the permission stage. This applies both to work done in the High Court, and in the Upper Tribunal’s exercise of its judicial review jurisdiction.

Disbursements, court fees and work done in connection with interim relief would always be paid, and the client would always have costs protection. However, solicitors and counsel would only be paid, in cases that do not reach the permission stage, if the LAA exercises its discretion. In doing so, it will look at the case in the round and in particular apply the following criteria:

  • why a costs order or agreement was not obtained as part of the settlement, including consideration of pre-action conduct [the expectation being that providers should generally seek costs from the defendant not the LAA if they “win” and should not be paid if they “lose”];
  • the extent to which the client obtained the remedy sought;
  • the reason why the client obtained the remedy sought [intended to prevent payment being made where a decision is overturned for a reason unrelated to the claimant’s claim];
  • the likelihood, considered at the point of settlement, of permission having been granted had the case progressed that far, taking into account the strength of the case and (if applicable) any specific indication given by the Court.

The discretion will apply to any work not covered; so if a partial costs order is made, an application for payment for the remaining costs could be made. A full application, addressing the criteria, will need to be made to the LAA. There will be a right of review. This is a separate and independent decision to the actual costs assessment. No indication is given in the paper as to whether making the application would be chargeable work to be included in the bill (if successful). If there are to be two separate applications – for permission to submit a bill, and for assessment, that will add delay to the payment process. If only one, that means that the costs of drawing up the bill will also be at risk.

On an initial view, this appears to require the LAA to make a carefully balanced assessment of the merits of a case, the conduct of the parties, and the wider factual and legal circumstances. It is not all clear that it is equipped to carry out this sort of quasi-judicial exercise.

The consultation closes on 1st November, and you can respond here.

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Emergency applications for legal aid for JR

Following the recent announcement of the removal of devolved powers (soon to be delegated functions) for judicial review for most types of case (the main exception being homelessness cases) the LSC has published a guide to making emergency applications to it / the LAA.

APP1s should be posted (marked urgent) in the usual way unless work is required within 48 hours, in which cases APP6s should be sent to one of two dedicated email addresses (for immigration and non-immigration cases). There is some provision for out of hours applications in the evenings and at weekends in immigration cases.

The LAA promise to deal with applications within 48hours and appeals against refusals within 24hours.

For more on the new legal aid scheme, see our LASPO Resources page, follow us on Twitter @legalaidhbk or download the Kindle edition of the new Handbook

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JR devolved powers to be abolished

The LSC have announced that devolved powers to grant emergency legal aid for judicial review cases are to be removed from 1st April (under the new scheme devolved powers will be renamed as delegated functions, but will otherwise operate in the same way). There are limited exceptions mainly for emergency homelessness cases, but otherwise emergency applications will have to be made to the LSC (presumably faxed using APP6) rather than granted under devolved powers. The LSC promise to announce a full procedure shortly.

This is a provision that was in 2010 contracts, and has been reproduced in 2013 contracts, but as a concession was not brought into force for firms that had previously had 2007 contracts. It will be brought into force from 1st April.

The rule says (para 5.3 of the 2013 specification)

Judicial Review: you do not have the power to make a determination that a Client qualifies for authorised representation provided on an emergency basis, or to amend or refuse to amend a limitation or condition to which a determination in respect of Emergency Representation is subject, in relation to Judicial Review in any Category of Law, other than in relation to proceedings under Part VII Housing Act 1996 (as amended), section 21 National Assistance Act 1948 (as amended), section 20 Children Act 1989 (as amended) or section 47(5) National Health Service and Community Care Act 1990 (as amended) unless we have specifically delegated this function to you by way of an Authorisation. You must only exercise such a Delegated Function in relation to such cases and in such circumstances as we specify

For more on the new legal aid scheme, see our LASPO Resources page, follow us on Twitter @legalaidhbk or pre-order the new Handbook by emailing direct.orders@marston.co.uk


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Devolved powers for JR extended

The LSC has announced that all organisations that currently have devolved powers for judicial review cases will continue to have them until March 2013. This means that the provision in the 2010 and 2012 contracts restricting devolved powers in JR cases will not now be brought into force. The LSC are developing policy on what to do from April next year, when devolved powers will be renamed delegated functions; they will not be available except in a limited range of cases and to providers who meet criteria yet to be developed

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