R (Duncan Lewis Solicitors) v Lord Chancellor
The Divisional Court (Holroyde LJ and Whipple J) has today granted permission to Duncan Lewis Solicitors to challenge an aspect of the Legal Aid (Remuneration) Regulations 2013.
Reg 5A of the 2013 Regulations prohibits payment for legal services in the course of an application for judicial review in certain circumstances where a claimant for judicial review fails to obtain permission to apply. In the earlier case of R (Ben Hoare Bell) v Lord Chancellor  1 WLR 4175 a divisional court held that reg 5A, as then enacted, was unlawful, because it failed to require payment in certain circumstances where a claimant does not obtain permission because of intervening circumstances, including where the defendant withdraws the decision under challenge. The court held that such events will break the otherwise “rational connection” between the failure to obtain permission and the legitimate aim of incentivising legal aid providers to thoroughly assess the merits of a claim.
On 9 October 2018, the Divisional Court granted Duncan Lewis permission to argue that the version of reg 5A that was put in place as a result of Ben Hoare Bell does not fully reflect the logic of the judgment in that case, in that it fails to require, or even permit, payment in a case where a claimant is refused permission at the paper stage, but where the defendant withdraws before the oral renewal hearing or some other intervening event makes it impossible for the claimant to take the case to oral hearing. Duncan Lewis argue that this situation falls within either the explicit ratio, or at least the implicit logic, of the Ben Hoare Bell judgment, as one where payment is required.
The full hearing is to be listed before a Divisional Court, and any judgment is likely to have major implications for legal aid providers and for access to justice.
Tim Buley is counsel for Duncan Lewis.