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Successful challenge to judicial review legal aid regulations

R (on the application of Ben Hoare Bell Solicitors and others) v The Lord Chancellor (2015) EWHC 523 (Admin)

On 3rd March 2015 the High Court of England and Wales held that judicial review regulations, introduced in April 2014, are unlawful.

The challenge was brought by four English law firms and Shelter, a housing charity, and concerned regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013.  Regulation 5A provides that lawyers will only be paid for legally aided judicial review claims where ‘permission’ was granted.  The permission stage is a filter in judicial review claims: claimants must show that their claim is arguable before it can proceed to a full hearing to determine the case. 

To be lawful, regulations made under statute must be consistent with the purpose of the statute under which they are made. The Claimants argued that the regulation was inconsistent with the statutory scheme which governs access to legal aid. The Lord Chancellor argued that the regulation would incentivise legal aid providers to more rigorously examine the merits of a case before issuing proceedings, and, as a result, the regulations would “enhance” the merits criteria in the statutory legal aid scheme.

The High Court rejected the Lord Chancellor’s argument.  It held that various events can occur in judicial review cases which are unforeseeable or outside the control of lawyers.  The court gave three examples: the defendant withdraws their decision (so no permission is granted), the court adjourns the permission hearing to an oral hearing or the court considers permission at the same time as the substantive hearing.  In all three situations, the court held that there is no rational connection between the incentive to assess the merits accurately, and the consequences of the lawyer not being paid.

Accordingly the court found that the Lord Chancellor did not have the power to make the regulation.  For commentary from the Public Law Project, an access to justice charity, please click here.

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