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Duncan Lewis succeeds in challenge over blanket Legal Aid refusals for Judicial Reviews where permission was refused on paper (20 December 2018)

Date: 20/12/2018
Duncan Lewis, Main Solicitors, Duncan Lewis succeeds in challenge over blanket Legal Aid refusals for Judicial Reviews where permission was refused on paper

In a judicial review against the Lord Chancellor, Duncan Lewis has successfully challenged the blanket refusal to provide legal aid funding for judicial reviews where permission was refused on the papers. The result will assist legal aid providers representing some of the most vulnerable in society and should in turn enhance access to justice.

Duncan Lewis Solicitors were the claimant in a claim for judicial review against the Lord Chancellor challenging the legality of Regulation 5A of the Civil Legal Aid (Remuneration) Regulation 2013. This regulation sets out the circumstances in which legal aid providers are paid for their work having issued a claim for judicial review.

When Reg. 5A first came into force, it essentially provided for a blanket ban on payment when a claim for judicial review had been refused permission to proceed to full judicial review (unless permission was later granted), even though the Legal Aid Agency had already independently determined that the claim should receive public funding. The justification for such a position was that it would incentivise legal aid providers to carry out a more thorough merits assessment at the start of a case and only seek funding for and subsequently issue cases that had more than a 50% chance of success. The regulation was partially amended after the case of Ben Hoare Bell in 2015, in which the Divisional Court held that the blanket prohibition was unlawful as it included instances where the failure to obtain permission was based on events that occurred “beyond the control” of the providers and only came to light after the initial merits assessment.

Duncan Lewis requested permission to bring a judicial review of the revised regulation, on the basis that the amendments made to Reg. 5A after the judgment did not go far enough to give proper effect to the decision in Ben Hoare Bell Duncan Lewis argued that providers should be paid when an event “beyond their control” occurred even in the circumstances where permission on the papers had already been refused but before the case had come to an end.

When the judicial review was first put forward, The Lord Chancellor resisted the claim. Ironically, the claim itself was initially refused permission on the papers, on a basis that had not been pleaded by the Defendant; this is exactly the sort of scenario that would have prevented payment in a legally aided matter even if the Defendant then withdrew its decision prior to an Oral Permission Hearing (OPH). Duncan Lewis were in fact given permission for judicial review at an OPH by a Divisional Court.

On reflection, the Lord Chancellor has come to the conclusion that his previous interpretation of Reg 5A was unlawful. He has revised his interpretation, the effect of which is that:

  1. In cases where the Defendant withdraws the decision under review, providers are entitled to payment even if that withdrawal comes after permission was refused on the papers, and

  2. In other cases where a case settles prior to an oral permission hearing, the Lord Chancellor will make payment if he considers it reasonable, taking into account certain circumstances.

As a part of the basis of settlement, the Lord Chancellor has undertaken to produce a ‘clarification’ of the effect of Regulation 5A within the next three months. We will publish that clarification on our website when it has been released.

The result means that legal aid providers will now be entitled to request remuneration in circumstances where: they carried out a merits assessment correctly, the Legal Aid Agency has agreed with the assessment and granted funding and then, post issue, owing to intervening events beyond the provider’s control, the case came to an end.

Duncan Lewis was the Claimant, with James Packer (Director of Public Law), and Kate Newman (Solicitor) preparing the case. Counsel for the Claimant was Tim Buley of Landmark Chambers.

We are grateful for the assistance provided by the Public Law Project, who provided us with relevant papers from Ben Hoare Bell.

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