Following a number of significant Government changes to Judicial Review from the 22nd April 2014 Legal Aid will be curtailed in the vast majority of Judicial Review cases.
On the 5th of February 2014 it was announced that a number of significant changes would be instigated to Judicial Reviews from the 22nd April. These changes will take an enormous effect on the availability of Legal Aid funding in Judicial Review, which is already currently subject to strict availability.
Once the changes are implemented, the difficulty in obtaining funding for Judicial Review will increase drastically and the most vulnerable individuals will find it increasingly difficult to challenge public authorities against unlawful decision making.
Judicial Review is the means in which decisions of public bodies may be challenged in courts on the grounds that a decision is illegal, irrational, procedurally unfair or exhibits failure to comply with the Human Rights Act 1998. A challenge may be brought by a claimant with sufficient interest in the decision that is under scrutiny.
Broadly speaking a Judicial Review is the means by which an individual may hold the state to account for an unlawful act.
When an individual issues an application for Judicial Review the application will be considered on the papers by a Judge. If the Judge considers that the case is arguable, then permission will be granted and the case will proceed to a full contested hearing at which the claimant and the defendant public body will be in attendance. At the conclusion of this hearing the unsuccessful party will normally pay the costs of the successful party.
Currently Legal Aid is available to fund Judicial Review proceedings that are means tested to have prospects of success of 50% or more.
The changes and the effects
One of the main reasons that changes to the current Judicial Review system is the apparent belief that “too many unmeritorious cases are brought”. Therefore the apparent remedy is to restrict the availability of Legal Aid for Judicial Review, so that Legal Service providers will only be paid for the work carried out for a case subsequent to the issuing of proceedings where permission is granted. Furthermore, in cases where permission is refused the Legal Aid Agency will retain discretion to make payment.
The main concern that we hold at Duncan Lewis is that these changes will have an impact on vulnerable individuals’ access to justice due to the inability to gain funding.
Once these changes are in place, meritorious Judicial Reviews will most likely be inhibited as Legal Service providers will be under a great risk when undertaking Legally Aided Judicial Review work. This will impair the ability of individuals with modest means to hold the State into account for “unlawful” actions as it will be increasingly difficult to find a Solicitor who can assist.
At Duncan Lewis Solicitors we stand in unity with all that oppose such drastic funding cuts. Despite the burgeoning difficulty, we will press on and continue to be relentless in helping the most vulnerable by challenging against unlawful decision making.
It is with this that we urge those of you out there with a strong Judicial Review Claim to get in touch and we will do our best to assist you.
“The cuts are a disaster for a great number of vulnerable clients. Many of our cases which we have won may have been initially refused at the permission stage. We assume these new provisions will deter many solicitors from taking on cases that are difficult. We at Duncan Lewis make it clear that these provisions will not deter us. It will be hard and we are currently looking at all avenues to challenge the legal aid changes. But, we will not stop in our efforts to help those who need our help. Our best work is still ahead of us”
Toufique Hossain, Public Law Director.