This page will contain updates to the 2013-14 Handbook tracking new developments since publication. All references are to paragraph numbers in the Handbook. This edition of the Handbook deals with cases started under LASPO (opened post April 2013). For Access to Justice Act 1999 cases, see the
2011-12 edition of the Handbook. We also welcome feedback and suggestions to
admin@legalaidhandbook.com.
No further additions are being made to this page - see the 2015/16 edition of the Handbook for up-to-date material Chapter 1 - see our
Resources page for links to all key documentation
3.9 Scope of
housing. Question 81 of the
Legal Aid Reform FAQs makes clear that the LAA believe that damages for disrepair are never in scope, even when pleaded alongside a claim for repairs to be carried out. Time will therefore need to be apportioned on the file to make clear that work done in respect of damages is not claimed. Scope of
immigration. In
Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin), Collins J held that claims for refugee family reunion were included with the scope of para 30 of part 1 of Schedule 1, since they "arise from" the Refugee Convention. However, that interpretation
did not survive the Court of Appeal, and so any cases started in the meantime will only be funded to 15 December 2014.
3.30 See now our posts on the
High Court and
Court of Appeal rulings in
Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin) and
[2014] EWCA Civ 1622, which declared the Lord Chancellor's Guidance to be unlawful in respect of Article 6(1) and Article 8 ECHR cases.
4.95 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better.
4.98 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better. From 22nd April 2014, payment for work done pre-permission in judicial review cases is conditional; see amendments to para 11.44A below for more details.
4.100 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better.
4.101 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better.
4.102 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better.
5.69 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better.
5.78 - legal aid is no longer available, for cases started on or after 27th January 2014, where merits are classed as borderline. Prospects of success must always be moderate or better.
8.4 In
Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin), Collins J held that claims for refugee family reunion were included with the scope of para 30 of part 1 of Schedule 1, since they "arise from" the Refugee Convention. However, that interpretation
did not survive the Court of Appeal, and so any cases started in the meantime will only be funded to 15 December 2014.
8.8 See now our posts on the
High Court and
Court of Appeal rulings in
Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin) and
[2014] EWCA Civ 1622, which declared the Lord Chancellor's Guidance to be unlawful in respect of Article 6(1) and Article 8 ECHR cases.
10.107 - 10.114 - with effect from 27th January 2014, the income test will operate in the same way, subject to an overall cap on household disposable income of £37,500. If income is above this level, legal aid will be refused. If it is below, clients may still be required to pay a contribution. See also the LAA
Criminal Legal Aid Manual. Ineligible defendants will only be entitled to costs back from central funds on acquittal if they have made and been refused an application - see the
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2014. Costs will only be paid at legal aid rates, regardless of the costs the defendant actually paid for representation. The effect of this is that ineligible defendants should always be advised to apply, even where it is known that they will be refused, or they will not be entitled to costs from central funds on acquittal. Applications for legal aid - even those expected to be refused - can only be made by firms with a criminal contract - firms that don't have a contract will have to come to an arrangement with a contracted firm to make an application, or advise private paying clients that they will not be entitled to recovery from central funds.
10.159 - the
Criminal Legal Aid (General) (Amendment) Regulations 2013 restrict the scope of prison law to:
Advice and assistance on sentence regarding
the application of the provisions in Chapter 6 of Part 12 of the Criminal Justice Act 2003 or in Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, which determine when a prisoner is either entitled to be released by the Secretary of State or eligible for consideration by the Parole Board for a direction to be released; or
the application of the provisions in Chapter 2 of Part 5 of the Powers of Criminal Courts (Sentencing) Act 2000, which determine when an offender is entitled to be released by the Secretary of State
Advice and assistance regarding disciplinary hearings where the proceedings involve the determination of a criminal charge for the purposes of Art 6 ECHR, or where the governor permits representation
Proceedings before the Parole Board, but only where the Par0le Board has the power to direct release 11.44A For cases started on or after 22nd April 2014, payment for work done between issue of proceedings and grant of permission in judicial review cases is conditional on either:
the court granting permission; or
notwithstanding that no permission was granted, the LAA agreeing to discretionary payment. The LAA will only agree to payment of pre-permission work in cases where permission was not granted if:
the court neither granted nor refused permission, and it considers that it is reasonable to pay remuneration in the circumstances of the case, taking into account, in particular—
(i) the reason why the provider did not obtain a costs order or costs agreement in favour of the legally aided person;
(ii) the extent to which, and the reason why, the legally aided person obtained the outcome sought in the proceedings; and
(iii) the strength of the application for permission at the time it was filed, based on the law and on the facts which the provider knew or ought to have known at that time. Disbursements - including court fees - will always be payable, but the above provisions affect both solicitor and counsel fees. Payment on account applications may be made in the usual way, but will be recouped if payment is not authorised. The relevant power is set out in the
Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014. See also the
form and
guidance for applying for discretionary payment. On 3 March 2015 the High Court found the regulations to be irrational in the case of
Ben Hoare Bell Solicitors & Ors, R (On the Application Of) v The Lord Chancellor [2015] EWHC 523 (Admin) (
our report here). The
regulations were quashed in on 24 March 2015, meaning that the above amendments to the remuneration regulations were of no effect. Therefore, payment was available in all JR cases since 22 April 2014, and practitioners may need to submit or re-submit claims covering this period. However, the
Lord Chancellor laid new regulations that affect all certificates granted on or after 27 March 2015, which reinstate the regulations with some amendments aimed at alleviating the grounds on which the Court quashed the last set. The
Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 provide that, for all certificates applied for on or after 27 March 2015, payment for judicial review work done pre-permission is conditional on one of the following:
the court giving permission;
the defendant withdrawing the decision which the JR challenges, with the result that the court refuses permission or makes no decision on permission;
the court orders an oral permission hearing or an oral hearing of an appeal against a refusal of permission;
the court orders a rolled up hearing; or
the court neither grants nor refuses permission and the Lord Chancellor considers it reasonable to pay remuneration in the circumstances of the case, taking into account, in particular:
the reason why no costs order or agreement was obtained;
the extent to which, and why, the outcome sought was achieved; and
the strength of the application for permission at the time it was filed, based on the law and on facts which the provider knew or ought to have known at the time. The transitional provisions say that the new regulations apply to certificates applied for from 27 March. Applications signed before 27 March and received by the LAA by 5pm on 31 March aren't caught by the new regulations, nor are applications submitted through CCMS before 27 March or grants of emergency representation made before 27 March and received by the LAA, or uploaded through CCMS, within 5 days. Existing certificates to which new JR proceedings are added on or after 27 March will be subject to the new rules.
12.54 - graduated fees, rather than fixed fees, may be claimed in cases where the defendant elects and the prosecution offer no evidence, leading to a not guilty verdict being entered. This only applies to cases where the representation order was granted on or after 2nd October 2014.
12.64 - see now the
new regime for claiming interim payments of profit costs for litigators in the Crown Court for cases where the representation order is granted on or after 2nd October 2014
13.26 - for cases started on or after 2nd Deccember 2013, payment rates for counsel in civil non-family cases have been reduced to the rates payable to solicitors for advocacy etc. See the
Civil Legal Aid (Remuneration) (Amendment) Regulations 2013. For judicial review cases started on or after 22nd April 2014, see new para 11.44A above.
14.31 - From 31 July 2014, Practice Direction 27A (PD27A) set out the content and format of the court bundle in family proceedings and introduced a maximum 350 page limit on the size of the court bundle in family cases. From that date, the LAA amended the regulations* so that bundle payments were claimed by reference to the Advocates Bundle rather than the Court Bundle. The amended regulations set out that the advocate’s bundle may only include
Those documents relevant to the case which have been served by the parties to the proceedings to which the hearing relates;
Notes of contact visits if included in the court bundle; and
A paginated index agreed by the parties to those proceedings.
Advocates must also include a written explanation of how the documents included in the bundle are relevant and necessary to the case. Practitioners’ representative groups asked the LAA for clarification about what they would require from providers on making claims for bolt on payments relating to advocates’ bundles. The advice received by Resolution from the LAA is set out in italics below, with the agreement of the LAA.
You should get certification of the relevant number of pages of the advocate’s bundle on the Advocates Attendance Form. You are advised to have available for the judge the agreed paginated index and reasons for why any documents which do not fall within paras 4.2 and 4.3 of PD27A are relevant and necessary.
Whilst there is no requirement to do so, some practitioners are seeking to ensure this is covered on the face of the order).
Whilst the LAA may ask for a copy of the agreed paginated index with an explanation of why any additional documents were included, there is no intention to do so as a matter of course, the certified AAF will usually be sufficient. Should the LAA make such a request, you would be expected to present the documentation prepared for the judge, but there is no expectation that the judge will have signed anything except the AAF.