Sunday, 15 September 2013

The - No legal aid until you get permission to claim Judicial Review - Volte Face

Sometimes I am drawn into the odd judicial review - although it is not my central field of practice.  I have noticed that the key phase of such a claim is the application for permission - once a Claimant is through that tough judicial filter then the prospects of the Defendant giving up and compromising is high.  Many claims end at that stage saving money (both the Court's and the public law defendant's resources as well as any public funding being used by the Claimant).

I understand that the MoJ wanted to reduce the number of JR claims by only providing public funding once the claim has permission to proceed.  That's about as bonkers as it gets because that's no funding at all - how does the impecunious claimant get permission without funding and without permission how does he make a claim??  It would actually be better only to provide funding up to the grant of permission - because usually if permission is granted the other side will fold or the claimants' lawyers might take a CFA risk given that the Court thinks that they have prospects of success.  Indeed a CFA post permission with a protective costs order would be a good way of funding JRs post-permission.

But removing funding pre-permission really just means removing JR from poor people, and given that poor people tend to interact with the state more than rich people, especially on key life sustaining topics like benefits (i.e. eating and living), housing (i.e. living) and immigration (not being sent to bad places) then it amounts to a Government decision to withdraw JR from those who need it most.

Which is what would make such a move quite important, if not of constitutional importance.

Sir Stephen Sedley got upset about it in the London Review of Books here  as did Treasury Counsel and lots of silks....and so on 5th Sept HMG dropped a stone:

“For payment for permission work in judicial review cases, in the light of responses to this proposal, we intend to consult further on an alternative option which will achieve our desired aim of preventing legal aid being used to fund weak cases which have little effect other than to cause delay and incur unnecessary cost.”

Didn't see that coming.


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