Grayling plans crackdown on use of legal aid to fund weak judicial review cases

Reforms aimed at reducing the use of legal aid to fund weak judicial reviews are among a package of measures unveiled by Justice Secretary Chris Grayling and aimed at saving £220m by 2018/19.

In a consultation paper, Transforming legal aid, the Ministry of Justice has proposed changes that would see the financial risk of the judicial review application transferred to the provider.

Under the reforms, providers would only be paid for work carried out on an application for judicial review – including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal – if permission is granted by the court. Reasonable disbursements, such as expert fees and court fees, would continue to be paid.

The approach is similar to a system that already exists for immigration and asylum Upper Tribunal appeals, the MoJ argued.

The paper said: “Legal aid would continue to be paid in the same way as now for the earlier stages of a case, to investigate the strength of a claim, for example, and to engage in pre-action correspondence aimed at avoiding proceedings, as is required by the Pre-Action Protocol for Judicial Review.

“Where a permission application was made the claimant would continue to be technically in receipt of legal aid for the permission stage of the case, and so would continue to benefit from cost protection, and would therefore not be personally at risk of paying costs if the permission application were unsuccessful.”

The MoJ said it recognised that the merits criteria were in place to help weed out weak cases, but it argued that these were not sufficient by themselves to address the issues identified in judicial review cases.

It insisted that it was appropriate for all of the financial risk of the permission application to rest with the provider, “as the provider is in the best position to know the strength of their client’s case and the likelihood of it being granted permission".

The consultation paper said no exception would be made where permission was refused, even if the provider insisted the case was in any event of substantive benefit.

The consultation paper claimed that there were just over 500 judicial review cases funded by legal aid which did not settle, applied for permission and failed, and ended without benefit to the client but with potentially substantial sums of public money expended on the case.

It argued that these figures suggested that there were a substantial number of cases which benefitted from legal aid but which were found by the court to be ‘unarguable’.

The MoJ said in the consultation paper: “We continue to believe it is important to make legal aid available for most judicial review cases, to ensure access to a mechanism which enables persons to challenge decisions made by public authorities which affect them.

“However, we are concerned that legal aid is being used to fund a significant number of weak cases which are found by the court to be unarguable and have little effect other than to incur unnecessary costs for public authorities and the legal aid scheme.”

The MoJ claimed that the move would preserve court and judicial time, drive greater efficiency and focus legal aid resources on cases that really required it.

It added that the reforms would mean a greater incentive for providers to give more careful consideration to the strength of the case before applying for permission for judicial review.

Another significant proposal in the reforms is an amendment to the civil merits test to prevent the funding of any cases with less than a 50% chance of success.

This would involve abolition of the ‘borderline’ prospects of success category, with such cases ceasing to qualify for civil legal aid funding.

Any applicant refused civil legal aid funding on the basis of a merits assessment would be able to appeal that refusal to an independent funding adjudicator, whose decision would be binding on the Legal Aid Agency (the renamed Legal Services Commission).

“We are concerned that the current merits criteria regarding cases assessed as ‘borderline’ are too lax,” the MoJ said.

It added: “We recognise that the cases to which the 'borderline' exception applies are high priority cases, for example cases which concern holding the State to account, public interest cases, or cases concerning housing.

“However, even for such cases there must be an assessment of merits and a decision must be made as to whether the prospects of success justify the provision of public funds.”

The reforms would also mean applicants having to satisfy a two-limbed residence test in order for civil legal aid to be available under the England and Wales scheme.

The test is: the individual would need to be lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time an application for civil legal aid was made; and the individual would be required to have resided lawfully in the UK, Crown Dependencies or British Overseas Territories for a continuous period of 12 months (either immediately prior to the application or at any point in the past.

There would be exemptions for armed forces personnel and asylum seekers. The power for legal aid to be granted in exceptional circumstances where a case is excluded from the scope of the civil legal aid scheme will continue, including for those who do not meet the residence test.

Describing the plan as a “common sense” test, the MoJ said: “We are concerned that individuals with little or no connection to this country are currently able to claim legal aid to bring civil legal actions at UK taxpayers’ expense.

“These may be people who have never set foot in England or Wales, or those who have never paid taxes in the UK, but who are yet able to benefit financially from the civil legal aid scheme. Alternatively these may be people who are in the country but whose connection is tenuous because they are simply here on a visa as visitors, or because they have temporary admission.”

Further significant proposals include:

• A 20% reduction in expert fees in civil, family and criminal proceedings;
• A 10% reduction in solicitor representation fees in family public law cases;
• Alignment of the fees for barristers and other advocates in non-family cases;
• Removal of the 35% uplift in provider legal aid fees in immigration and asylum appeals.

The bulk of the reforms relate to criminal legal aid. In this regard, the consultation paper once again proposes the introduction of price competition, “initially for the full range of litigation services (except Very High Cost Cases (Crime) VHCCs) and magistrates’ court representation only”.

The MoJ is also seeking to reduce the cost of criminal legal aid fees for Crown Court advocacy and VHCCs (both litigation and advocacy).

Justice Secretary Chris Grayling said: 'We have an excellent tradition of legal aid and one of the best legal professions in the world. But we cannot close our eyes to the fact legal aid is still costing too much. It is not free money, it is paid for by hard-working taxpayers, so we must ensure we get the very best value for every penny spent.”

A copy of the consultation paper can be found here. The deadline for responses is 4 June 2013. The Government will respond to the consultation in Autumn 2013.

Philip Hoult