LAA funding delays no excuse for missing court deadlines, Court of Appeal rules

Litigants may be forced to choose between abandoning claims or representing themselves if LAA funding decisions cannot be made within appeal timeframes – even for judicial review claims.

Kigen and Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 1286

Background

In this dispute, the husband and wife appellants – Frank Kigen and Janet Cheruiyot – were seeking to establish they were entitled to be granted leave to remain in the UK (2). Having been refused permission to stay by the secretary of state, the pair sought to bring a judicial review of this decision. However, proceedings were issued one day late (3). The application for permission was refused by Upper Tribunal judge Kekic, who observed that the claim had been commenced out of time. The judge further noted that she did not think a satisfactory decision had been given for the delay (4).

From the point at which the appellants’ solicitor was formally informed of this refusal – 5 November 2014 – they had nine days to lodge an application for the decision to be reconsidered. However, no appeal was lodged until 27 November 2014 – 13 days late. In this application, the appellants asked for an extension of time – although the Court of Appeal later expressed misgivings about the form this application took (19). Part of the explanation for the delay was that the Legal Aid Agency (LAA) has taken from 6 November to 26November to agree legal aid funding (5), after initially refusing to do so (21). When the decision came before Judge Freeman on 6 February 2015, he declined to grant the appellants an extension of time. Judge Freeman did, however, grant the pair leave to appeal to the Court of Appeal (6).

Dispute

In granting the appellants leave to appeal to the Court of Appeal, Judge Freeman gave the court the opportunity to consider whether or not a delay caused, at least in part, by waiting for a LAA funding decision should be held against a person – particularly in relation to public law proceedings in which fundamental rights were engaged (7). Appearing before the Court of Appeal, the claimants’ counsel argued that existing case law supported this position. She also submitted that the delay itself was neither serious nor significant. Also relevant was that the appellants ultimately obtained LAA funding: it would therefore be unreasonable for them to conduct the case as litigants in person, which would have been the only viable option until funding had been secured (7).

For their part, the defendant’s counsel accepted that, in former times, the courts had been willing to accept delays caused by the legal aid authorities in public law cases – an acceptance not always granted in private law disputes. However, in light of the more recent cases of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v T. H. White Ltd [2014] EWCA Civ 906, and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, counsel for the defendant suggested that the courts adopted an increasingly strict approach to compliance with time limits. Further, because the proceedings had been issued out of time in this case – without a “satisfactory explanation”, the courts should also take this into account when making their decision (8).

Decision

After reviewing earlier case law in his Court of Appeal decision, Lord Justice Moore-Bick noted how “much had changed” in the years since some of cited cases were heard. Not only had the courts become “far less tolerant of delay”, there had also been a significant reduction in legal aid which, in turn, had led to an increase in the number of litigants in person (12). However, citing his own decision in Hysaj, Moore-Bick LJ noted that:

“it is particularly important for [judicial review] proceedings to be started promptly and pursued with diligence … there is no reason in principle, therefore, why the court should take a more relaxed approach to compliance with the rules than it would in private law proceedings; if anything, there are grounds for adopting an even stricter approach

Again citing Hysaj, Moore-Bick LJ noted that, while it was “unfortunate” than many litigants were forced to act on their own behalf, “that cannot on its own provide a good reason for failing to comply with the rules” (15).

In this particular case, Moore-Bick LJ, explained, while it was public law claim, it also did not appear to raise any questions of wider importance. As such, there was no strong public interest in granting the appellants a time extension (16). In such circumstances, he said, the courts should treat such matters as if they were a private law claim. He then reiterated that:

“a shortage of funds does not of itself provide a good explanation for the delay, nor does it constitute grounds for extending time

In essence, a litigant who has applied – but not obtained – legal aid funding is in the same position as someone who cannot afford legal representation: they must either represent themselves, or abandon their claim unless or until they are able to instruct a solicitor (17). More generally, while delays in obtaining legal aid was a factor that the courts could take into account when a party failed to comply with procedural requirements, it was “no longer appropriate” to treat it as a “complete answer” (18).

However, in light of the “degree of uncertainly” that surrounded this issue – not least from solicitors – Moore-Bick LJ ultimately permitted the extension of time, on the basis that refusing the extension “would be to impose on these appellants greater prejudice than is justified by the delay” (29). As a result of this decision, the appellants would be permitted to have their application for permission to apply for judicial review reconsidered at an oral hearing (30).

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