News in brief 5th March 2015

Another legal aid defeat for Grayling

In the latest setback for the government’s civil legal aid reforms, the Divisional Court ruled this week that aspects of the ‘no permission, no fee’ approach to judicial review – introduced in April 2014 – were unlawful.

The regulations provided that lawyers working for claimants in a legally aided application for judicial review would only be guaranteed payment once a claim had been granted permission.

The challenge was brought by social welfare law providers Ben Hoare Bell Solicitors, Deighton Pierce Glynn Mackintosh Law, Public Law Solicitors and the homelessness charity Shelter, supported by access to justice charity the Public Law Project.

Although the court did not strike down the principle behind the scheme – with the defendant Lord Chancellor arguing that the regulations incentivise legal aid providers to more rigorously examine the merits of a case before issuing proceedings – it did find that various events can occur in judicial review cases which are unforeseeable or outside the control of lawyers.

These were: where defendants withdraw the decision challenged; where the court orders an oral hearing of the application; and, where the court orders a rolled-up hearing.

The court found that there was no rational connection between the effect of the regulations and their stated purpose and 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”.

Court fee rises set to come into force

The controversial court fee rises, which will see some fees go up by more than 600%, look set to come into force on 9 March.

This is despite a coalition of legal bodies announcing their intention to launch a judicial review of the increases.

A pre-action protocol letter was sent by the Law Society and also signed by the Bar Council, CILEx, the Forum of Insurance Lawyers, Association of Personal Injury Lawyers, Motor Accident Solicitors Society, Chancery Bar Association and the Commercial Bar Association.

One of the grounds of the challenge is that the proposals would amount to “selling justice” contrary to the principles of Magna Carta. It also argues that government does not have the power to raise fees for the purposes it has stated in the Ministry of Justice consultation – to make ‘departmental savings’.

It accused the government of proceeding without evidence to justify the increases, which it described as “effectively a tax”.

The letter went on: “Consultees were not told how much money needed to be raised from enhanced fees or why – this is a breach of the government’s own consultation principles, which state that sufficient reasons must be given for any proposal to permit intelligent consideration and response.

“When the government tabled its second round of proposals on higher fees for possession claims and general civil applications, it had already made up its mind about certain options – which is unfair.”

Several bodies – including the Law Society, Bar Council, Civil Justice Council and City of London Law Society – have this week published their responses to the consultation on that second round of court fee hikes, all of which were strongly opposed to them.

Small claims costs denied

A claimant has lost her bid for costs in a case which started out in the small claims court but ended in the Court of Appeal.

According to Lord Justice Kitchin in Conlon v Royal Sun Alliance [2015] EWCA Civ 92, the only ways Louise Conlon could claim her costs would be for the court to rule under CPR 27.14 that the defendant had behaved unreasonably, or for the case to be reallocated to the multi-track.

Lord Justice Kitchin said he could see “nothing unreasonable” about RSA’s behaviour during the course of the case.

He also rejected the argument that the case should be re-allocated to the multi-track under CPR 26.10.

Kitchin LJ said it was “implicit” in CPR 46.13, that if that occurred, the court could backdate the re-allocation for costs purposes, as long as there were “good reasons”.

However, he said it was “far too late” to make a re-allocation order in this case and the application for re-allocation was made four months after the filing of notice of appeal.

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11 Mar 2015

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