Family Law

Today the 'no permission, no payment' judicial review regulations have been ruled unlawful by a Divisional Court (Beatson LJ and Ouseley J) in R (Ben Hoare Bell and Others) v Lord Chancellor [2015] EWHC 523 .

The Court held that the Civil Legal Aid (Remuneration) (Amendment) (No.3) Regulations 2014, which remove funding for all work done on JR permission applications where permission is refused, and make funding conditional on an LAA discretion where the permission stage is not reached, are unlawful because they are contrary to the purpose of the statutory scheme set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2013.

The claim was brought by four solicitors firms and an NGO, who argued that the Regulations would have a chilling effect on judicial review and, contrary to what Parliament intended, would prevent meritorious judicial review claims from being brought because of the financial risk faced by legal aid providers.

The claimants argued that in many cases permission applications will be risky and expensive for reasons outside of the control of JR claimants and their lawyers. The Court accepted this, finding that for some classes of case there was no rational connection between the effect of the Regulations and their stated purpose, holding that 'the reach of regulation 5A 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 also stated that it was a matter of 'great concern' that there had been a 23% decline in applications for legal aid in JR claims since the Regulations came into force and that, in the light of the evidence of the chilling effect of the Regulations from 'so many serious and experienced practitioners', a review by the Government is necessary.

Polly Brendon, of Public Law Project said:

'Our clients are heartened by this outcome, and urge the Lord Chancellor to accept the judgment of the Court and work positively with providers to maintain an effective legal aid scheme that meets Parliament’s intentions.'

The Divisional Court has not reached a decision on relief in this case yet.

The claimants in this case were Ben Hoare Bell Solicitors, Deighton Pierce Glynn Solicitors, Mackintosh Law, Public Law Solicitors and Shelter. They were represented by Martin Westgate QC and Martha Spurrier, instructed by Polly Brendon at the Public Law Project.

The full judgment is available here.

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This news item was originally published on the Doughty Street Chambers website and has been reproduced here with permission of the copyright owner.