The High Court has found that regulations determining when legal service providers can be paid for legal aid work in judicial review claims are unlawful, following a challenge brought by four law firms and Shelter, a housing and homelessness charity. The case was supported by evidence from a number of other law firms and charities, including Coram Children’s Legal Centre, the Howard Legal for Penal Reform, and Medical Justice. This case will be of particular interest to those charities/NGOs whose area of interest or campaign objectives are affected by judicial review.

The Lord Chancellor has a duty under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to secure that legal aid is available in certain circumstances. R (on the application of Ben Hoare Bell Solicitors and others) v Lord Chancellor [2015] EWHC 523 (Admin) concerned the Civil Legal Aid (Remuneration) Regulations 2013, which provide arrangements for the payment of those providing legal services under the legal aid scheme. The challenge was brought on the basis that regulation 5A, which provided that lawyers would only be paid for legally aided judicial review claims where permission was obtained, was unlawful. Claims for judicial review require permission from the court: claimants must show that their claim is “arguable” before it can proceed to a full hearing to determine the case.

The court rejected the claimants’ arguments that this regulation went beyond the Lord Chancellor’s powers in enacting such a regulation, and that it would have a chilling effect on the provision of legal aid (particularly difficult to show given the short three month time limit for bringing a claim and therefore gathering evidence). However, it found that the regulation was inconsistent with the statutory purpose of the legal aid scheme, and thus unlawful.

The purpose of the regulation was said to be to incentivise lawyers to rigorously assess the prospects of the claim (legal aid only being available where the prospects of success are 50% or above). Although in some situations the regulation may be consistent with the purpose of the statutory scheme, the reality is that there are a number of situations where the risks involved in assessing the prospects of success are out of the control of the provider: for example, where the defendant withdraws their decision (so the claim becomes academic, and no permission is given), and where the court adjourns the permission decision to an oral hearing or considers permission at the same time as the substantive hearing (a “rolled-up” hearing). In the latter two situations, substantially more costs would be incurred than originally foreseen. In all three of the situations, there is no rational connection between the incentive to assess the merits accurately, and the consequence of the lawyer not being paid.

The fact that discretionary payment was available in certain limited circumstances did not save the regulation from being unlawful.

The judgment is an important victory for access to justice in that the availability for legal aid in judicial review cases will not be restricted further, and lawyers working on such cases will continue to be paid for their work. It also demonstrates how judicial review can be used as a useful tool for charities in protecting the interests of their service users. However, the case must be viewed in the wider context of the cuts to legal aid generally, and the government’s fundamental reforms of judicial review in the Criminal Justice and Courts Act 2015.

Melanie Carter photo

Melanie Carter

Partner and Head of Public & Regulatory

+44(0)20 7551 7615

View full information about Melanie Carter

Posted on 04/03/2015 in Legal Updates

Back to Knowledge