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Permission granted for Duncan Lewis to challenge the Legal Aid Regulations that prevents payment where permission was refused on paper (12 October 2018)

Date: 12/10/2018
Duncan Lewis, Main Solicitors, Permission granted for Duncan Lewis to challenge the Legal Aid Regulations that prevents payment where permission was refused on paper

Further to the success brought by Duncan Lewis which resulted in the Government agreeing to amend the Civil Legal Aid (Procedure) Regulations 2012 to allow for legal aid certificates to be backdated, this judicial review continues the fight for access to justice, in a challenge to a different Legal Aid Regulation that stands in the way of providers continuing to assist those who are most in need.

Duncan Lewis solicitors are the claimant in a claim for judicial review against the Lord Chancellor challenging the legality of Regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013. This regulation governs the circumstances in which lawyers who undertake work on claims for judicial review on civil legal aid can be paid for the work where permission to apply for judicial review is refused.

Regulation 5A initially contained a blanket prohibition that prevented the Legal Aid Agency from making any payment to lawyers for work done on a judicial review matter if permission was refused. The purpose of the prohibition was said to be to ‘incentivise’ providers to better assess the merits of a prospective claim for judicial review – even though by that stage the Legal Aid Agency had already considered the reasons that the claim should be funded and had themselves independently concluded that the claim had a better than 50% chance of success. The regulation was redrafted after the case of Ben Hoare Bell in 2015, where the Divisional Court held that the blanket prohibition, on the basis that the permission had been refused, 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 now brings its claim on the basis that the amendments made after Ben Hoare Bell did not go far enough to give effect to the true principle established in that case. We argue that the regulations should be amended to ensure that providers are still paid for their work when instances occur “beyond their control” either before or after permission is refused on the papers, but before the end of the case.

This judicial review is crucial for legal providers who wish to bring a judicial review, yet are worried that an extraneous event will render their permission refused and therefore they will not be paid.

The relentless cuts to legal aid have brought the justice system to breaking point. Cuts to legal aid and forcing lawyers to work for free have clogged up the courts with unrepresented litigants who can struggle to understand the legal points relevant to their cases or the rules about conducting a case in court. Judicial review is the bedrock of our justice system, often the sole means by which an individual can hold faceless bureaucrats to account, and we are committed to ensuring that it remains available to the most disadvantaged.

When the government tried to abolish legal aid for judicial review, parliament threw the proposals out. We believe that by bringing in regulations that in many cases prevent lawyers from being paid for the work that they have done, even where the independent Legal Aid Agency assessed that the matter warranted funding as an important case with a good chance of success, the government is trying to achieve their aim by the back door.

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

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