3rd March 2015

Together with three other law firms and the charity Shelter, Ben Hoare Bell has succeeded in a legal challenge to the lawfulness of regulations which would have had the effect of restricting the ability of the public to bring judicial reviews against local authorities, NHS bodies and other public authorities.  In a judgment handed down this morning, a Divisional Court has ruled that the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 SI 2014 No. 607 (“the regulations”) are unlawful.

The regulations, which came into force on 22 April 2014, cut funding for judicial review cases brought by individuals in receipt of legal aid. Under the new regulations, the work done by solicitors and barristers on an application for judicial review funded by legal aid would not be paid if the Court refused to grant permission. If the case settled before the Court makes a decision on permission, the work would not be paid for unless the Legal Aid Agency exercised its discretion to pay.

The challenge to the regulations was brought by Ben Hoare Bell Solicitors LLP, Deighton Pierce Glynn, Mackintosh Law, Public Law Solicitors and Shelter. We were represented by the Public Law Project and Martin Westgate QC and Martha Spurrier of Doughty Street Chambers.

Together with the other claimants we were concerned that, because of the regulations, people eligible for legal aid to bring judicial review claims would not be able to find lawyers able to take on their cases. The witness evidence filed in support of the case demonstrated a widespread concern amongst experienced judicial review practitioners and NGOs at the impact of the regulations on access to justice.

We challenged the lawfulness of the regulations, arguing, amongst other things, that they were inconsistent with the LASPO statutory scheme which governs access to legal aid, through which Parliament intended that lawyers should be paid for work reasonably done on legal aid cases which met the criteria for merits set out in the scheme.

The Lord Chancellor argued that the regulations would incentivise legal aid providers to more rigorously examine the merits of a case before issuing judicial review proceedings, and, as a result, the regulations would “enhance” and make “more effective” the merits criteria in the statutory scheme.

Rejecting the Lord Chancellor’s argument, the Divisional Court observed that events can occur in judicial review cases which are unforeseeable or outside the control of the provider, and which could weaken a claim, and/or make continuing the application for permission considerably more expensive than anticipated. The Court found that in such circumstances there was no rational connection between the effect of the regulations and its stated purpose; that the reach of the regulations “extends well beyond those in which such a regulation could lawfully incentivise providers to a sharper focus on the merits test in the way described in the consultation papers”.

The Court further found that the Legal Aid Agency’s limited discretion to pay providers if a case settles before a Court decides permission did not remedy the inconsistency between the operation of the regulations and their stated purpose.

For any further information please contact Simon Garlick on Simongarlick@benhoarebell.co.uk