Government puts out new Regulations as High Court overturns “no permission, no payment” civil legal aid rules

Here at T M Costings, we welcome the recent ruling in Ben Hoare Bell Solicitors & Ors, R (On the Application Of) v The Lord Chancellor [2015] EWHC 523 (Admin) (03 March 2015). This ruling overturned recently-introduced limitation on the availability of legal aid funding for judicial review cases.

In Ben Hoare, the focal point of the judicial review was regulation 5A of the Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 SI 2014 No 607, which came into force on 22 April 2014. This regulation effectively banned guaranteed payments for civil legal aid-funded judicial reviews unless the court either a) “gives permission to bring judicial review proceedings” or b) “neither refuses nor gives permission and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case”.

In practical terms, the impact of this regulation meant that solicitors and counsel bringing a legal aid-funded judicial review would not be paid between issue and permission, unless permission was ultimately granted. And, in circumstances where the court did not ultimately decide on the permission issue – if, for example a claim was withdrawn – the only option available to a claimant’s legal team was to seek payment from the Legal Aid Agency (LAA). However, under the regime introduced by Regulation 5A, the LAA was not obliged to make such a payment.

Delivering their joint judgment in Ben Hoare, Lord Justice Beaton and Mr Justice Ouseley rejected two out of the three arguments put forward by the claimants – that the regulation was ultra vires, and also that it would have a “chilling effect” on access to the High Court. However, the judges did accept the claim that the new regulation was inconsistent with the legal aid scheme’s statutory purpose, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This was because “the scope of regulation 5A extends beyond the circumstances which can be seen as rationally connected to the stated purpose given for its introduction.” On this basis, the judicial review application challenging the introduction of Regulation 5A succeed.

In delivering their ruling, the judges noted their “great concern” about a 23 per cent decline in applications in legally-aided funded judicial review cases, and a 15 per cent drop in the number of certificates granted, since the new regulation was introduced, together with the “evidence of so many experienced practitioners” who made submissions in this case. The judges therefore welcomed comments made by the government’s counsel, James Eadie QC, that the practical impact of the regulation would be kept “under review”. In doing so, the judges expressed their belief that: “that such a review is necessary”.

The government was quick to react, putting out some new Regulations, The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015, which came into force on Friday, 27 March 2015.

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