The Bach Report: (16) Judicial Review

This is the fourteenth in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

1.EXTRACT FROM THE REPORT

Judicial Review

Judicial review cases have formally remained within the scope of legal aid. But regulations introduced in 2014 regarding the payment of legal aid providers have, in practical terms, dissuaded legal aid providers from bringing proceedings for judicial review. In so doing they have undermined the right of individuals to challenge the actions of public bodies.

The regulations in question stipulated that remuneration would only be paid to providers if the court gave permission to bring judicial review proceedings or if certain criteria were met regarding the relative strength and success of the application in cases where the proceedings came to an end before the court made its decision. If these criteria are not met, then the provider is unable to recoup remuneration from the LAA.

The commission has heard from a number of legal aid providers that this lack of certainty regarding remuneration is putting them off applying for judicial review altogether, with the public law department at Irwin Mitchell writing of

“the unacceptable costs risks placed on providers that provide a disincentive to pursue judicial review claims.”

The commission recommends the relevant regulation limiting the remuneration of legal aid providers for judicial review is repealed.

 

2. APPENDIX 5 TO THE REPORT

CHAPTER 10: Judicial Review

Introduction

Judicial Review (JR) is an essential tool in the citizen’s armoury against unjust or unlawful decisions by the state or other public authorities. Although they accepted that it was a remedy of last resort, experienced practitioners told the Commission that all too often local authorities – and the Home Office, too – refused to reconsider a matter until JR proceedings were contemplated – or, in some cases, actually issued.

In general, JR proceedings remained in scope under LASPO. The Lord Chancellor, however, introduced regulations[1] which had the effect of preventing a legal aid provider from receiving any remuneration at all unless the court gave permission to bring JR proceedings or, if they came to an end before the court made any decision, if he considered it reasonable to pay remuneration in the circumstances of the case, taking into account, in particular:

  1. the reason why the provider did not obtain a costs order or costs agreement in favour of his client;

  2. The extent to which, and the reason why his client obtained the outcome sought in the proceedings; and

  3. The strength of the application for permission at the time it was filed, based on the law and on the facts which the provider knew or ought to have known at that time.

In 2015, however, while rejecting a frontal assault on the vires of these regulations, the Divisional Court held in the case of R (Ben Hoare Bell) v the Lord Chancellor that because they extended to putting providers “at risk” in circumstances outside their immediate control, they were invalid in three main respects which were in due course reflected in the amendment regulations that were introduced following the court’s decision.[2] These added three new situations in which providers might be paid for the work they had done, namely when:

(c) The defendant withdraws the decision to which the application for judicial review relates and the withdrawal results in the court –

(i) refusing permission to bring judicial review proceedings, or

(ii) neither refusing nor giving permission;

(d) The court orders an oral hearing to consider –

(i) whether to give permission to bring judicial review proceedings;

(ii) whether to give permission to bring a relevant appeal; or

(iii) a relevant appeal, or

(e) the court orders a rolled-up hearing.[3]

 

The problems that are created when providers are placed on risk

Despite these changes the Public Law Department of Irwin Mitchell[4] wrote from no doubt bitter experience of

the unacceptable costs risks placed on providers that provide a disincentive to pursue JR claims”.

The Community Legal Partnership said that it remained the case that a legal aid provider would have to bring a case entirely at risk in terms of costs, and that this was clearly dissuading a number of such providers from taking on these vital cases.[5]

Evidence was given to the Divisional Court in the Ben Hoare Bell case to show that it was particularly hard to predict the outcome of the permission stage of an application for JR. One of the reasons for this was the imprecision of the test applied by the courts at that stage in the absence of a “rigid definition” of the criteria for granting permission. The court accepted that any predictive assessment included a risk of error, and that litigation was notoriously risky: it was inherent in judicial decision-making that there would be a variation in how judges applied test such as “arguability”:

“Some of this is a reflection of the nature and complexity of the case, some may reflect the experience of the judge, but in general the variation follows a normal distribution”.

The court, however, was impressed by the fact that some of the evidence indicated an ability to predict decisions on permission with considerable success.

Concern, in short, was expressed about the chilling effect of the regulations, which could lead providers to prioritise the risk of not being paid over the objective assessment of the merits of the client’s case.

JustRights drew attention to the great concern expressed by the Divisional Court about the fact that there had been a 23% decline in applications for legal aid in JR claims since the changes came into force. This trend has continued, as the following statistics show:

Public Law Civil representation costs met by LAA (volume) Civil representation costs met by LAA (value) (£’000)
2012-13 1,050 5,415
2013-14 984 5,134
2014-15 795 5,187
2015-16 611 4,172
2016-17 581 3,412

The Police Action Lawyers’ Group said that the refusals of permission can be arbitrary, unpredictable and outside the control of the lawyer or his client:

“They introduced a heavy costs risk in circumstances where claimant legal aid firms are already working with extremely tight margins and where no matter how conscientious and professional the lawyers, something may happen beyond their control that means they do not get paid for the work they have done even though it was reasonable for them to have done that work.”

They pointed out that the new regime affected test cases, because where there was no clear legal precedent the financial risks were far too high for practitioners to face.

They added that the consequences of a failure to obtain legal aid are serious. Not only is a litigant in person faced with the prospect of having to pay “prohibitively high” court fees as well as adverse costs orders. They are also extremely unlikely to be provided with the appropriate documentary evidence, to be able to quantify the value of their claim for damages, or to navigate civil procedure effectively:

“This is in the context of seemingly limitless funding for legal advice to public defendants, paid for by the public purse. The effect is that claimants face insurmountable hurdles at every turn and access to justice is rendered meaningless for many.”

It should be remembered that legal aid contracts will only be awarded to firms and not for profit agencies who have satisfied the LAA that they are competent to carry out JR work, and that they are audited for their compliance with quality standards. As things stand, they will not be granted legal aid in a JR case unless they have satisfied the LAA that the particular case qualifies for support. The new regulation (as amended) has merely introduced another hurdle, using the unpredictable exercise of discretion by an Administrative Court judge as a proxy for the kind of decision LAA staff are being paid to make.

And since JR was not taken out of scope, and since no budgetary provision was made for any reduction of expenditure in JR cases, this change has had an effect not intended by the originators of LASPO.

 

 

[1] Civil Legal Aid (Remuneration) (Amendment) Regulations 2014, SI 2014/607, which introduced a new Regulation 5A to the earlier regulations.

[2] R (Ben Hoare Bell) v the Lord Chancellor (2015) EWHC 253 (Admin). Accessed September 2017:

 http://www.bailii.org/ew/cases/EWHC/Admin/2015/523.html 

[3] Civil Legal Aid (Remuneration) (Amendment) Regulations 2015, SI 2015/898. Accessed September 2017: http://www.legislation.gov.uk/uksi/2015/898/pdfs/uksi_20150898_en.pdf

[4] A firm of solicitors which conducts a large volume of JR work on a national basis. Its public law department has 60 staff, headed by three partners, and is based in seven offices across the country.

[5] They explained that JR was an essential tool for gypsies and travellers seeking to challenge the unlawful activities of local and public authorities.

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