The Public Law Project challenged the residence test on the basis that it is ultra vires, discriminatory and in breach of the common law and ECHR art 6, read with art 14. The Divisional Court (Moses LJ and Collins and Jay JJ) upheld the challenge, finding that the residence test was ultra vires of the enabling power in LASPO and discriminatory (R (Public Law Project) v SSJ [2014] EWHC 2365 (Admin), 15 July 2014).

The Divisional Court judgment was successfully appealed to the Court of Appeal by the lord chancellor (Public Law Project v Lord Chancellor [2015] EWCA Civ 1193, 25 November 2015). In a unanimous judgment delivered by Laws LJ, the Court of Appeal overturned the Divisional Court’s decision. The court found that, although the test was discriminatory, this was justified as a proportionate measure to achieve the legitimate aim of saving public expenditure. It also found that the introduction of such a test through secondary legislation was not ultra vires as LASPO s41(2)(b) is ‘clearly wide enough to encompass characteristics of a class which to a rational mind are material to the heightened efficiency of civil legal aid: an objective which plainly includes the saving of public funds’ (para 23). PLP has sought leave to appeal to the Supreme Court. At the time of writing, the lord chancellor had not laid a further statutory instrument to reintroduce the test.

In Gudanaviciene and others v Lord Chancellor and another [2014] EWHC 1840 (Admin), 13 June 2014, a linked case on behalf of six people (including IS, see below) who had been refused exceptional funding, the Administrative Court (Collins J) held that the lord chancellor’s exceptional funding guidance was unlawful because it set too high a threshold for the grant of funding and that the guidance was wrong to suggest that ECHR art 8 would never require the provision of legal aid for immigration cases.

The lord chancellor appealed this decision to the Court of Appeal (R (Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWCA Civ 1622, 15 December 2014). The court (Dyson MR and Richards and Sullivan LJJ) upheld the Administrative Court judgment in part. The court held that the test in the guidance was too high and that nowhere in the case law was it suggested that legal aid should only rarely be made available in these cases or that it would be ‘exceptional’. Nor was it right to say that exceptional funding should only be available where it could definitely be said that there would be a breach of the individual’s rights. Further, the guidance was wrong to suggest that the procedural obligations under ECHR art 8 could not require the provision of legal aid in immigration cases.

On 15 July 2015, the Administrative Court handed down a second judgment in IS v Director of Legal Aid Casework and another [2015] EWHC 1965 (Admin). This was a test case to challenge the manner in which the exceptional funding scheme has been implemented and operated. Collins J held that the application procedure for exceptional funding is ‘far too complex’ (para 105) for applicants in person, while the rigidity of the merits test is ‘wholly unsatisfactory’ (para 106). He held that the scheme is not providing the safety net promised by parliament and is defective, as it does not give any right to appeal where an individual who lacks capacity will otherwise be unable to access a court or tribunal.

The director of legal aid casework has been granted permission to appeal to the Court of Appeal.

The inquest exceptional funding guidance has also been the subject of challenge. In R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin), 20 February 2015, Green J held that the guidance was unlawful because it suggested that the only cases in which legal aid should be provided were where there was an ‘arguable breach’ of ECHR art 2. This is an incorrect reading of the case law, which shows that funding may be required in public interest cases and will be required where the art 2 duty arises automatically, such as in custody deaths, regardless of whether there is an arguable breach of art 2.

The challenge is brought on the basis that the removal of key areas of prison law from the scope of legal aid creates an unacceptable risk of unlawful and unfair decision-making and breaches the right of access to the courts under the common law and ECHR art 6. The claim was refused permission by the Divisional Court (R (Howard League for Penal Reform and another) v Lord Chancellor [2014] EWHC 709 (Admin), 17 March 2014) but in July 2015, the Court of Appeal allowed the claimants’ appeal against the refusal of permission ([2015] EWCA Civ 819, 28 July 2015).

The substantive hearing will take place in January 2017 before the Court of Appeal. Following the grant of permission, the lord chancellor indicated that applications from prisoners for exceptional funding would be considered, although there is no guidance as to how this would work in practice and he has indicated that it will only be granted in the very limited circumstances where ECHR art 8 is engaged.

The Divisional Court (R (Rights of Women) v Lord Chancellor and another [2015] EWHC 35 (Admin), 22 January 2015, Fulford LJ and Lang J) held that that the regulations were lawful, finding that the power to make evidential requirements for domestic violence victims was a wide one and that the requirements did not frustrate the purpose of LASPO. The court was particularly influenced by the fact that the regulations had been the subject of extensive parliamentary debate.

Rights of Women was granted permission to appeal to the Court of Appeal. The case was listed for January 2016.

A group of legal aid solicitors challenged the regulations on the basis that they were ultra vires, contrary to the LASPO statutory purpose and that they would have a chilling effect on judicial review.

In R (Ben Hoare Bell and others) v Lord Chancellor [2015] EWHC 523 (Admin), 3 March 2015, the Divisional Court (Beatson LJ and Ouseley J) held that the regulations were contrary to the LASPO statutory purpose because, in certain circumstances, they were disconnected from their legitimate aim of incentivising providers to look more carefully at the merits of the claim. These circumstances included where the court ordered an oral or rolled-up hearing, thus inflating the costs risk to the provider in a way that the provider could not predict or control, and where the defendant withdrew the decision under challenge.

As a result of the court’s decision, the lord chancellor agreed that the 2014 regulations should be quashed.

On 26 March 2015, the lord chancellor laid the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 SI No 898. Those regulations add three circumstances in which payments will be made in judicial review claims where permission is refused. These are:

In cases that do not reach the permission stage, claimant lawyers will need to persuade the LAA to exercise its discretion to pay them.

During the consultation process, the lord chancellor commissioned two independent reports to determine how many duty provider contracts would be available. Despite a request from the CLSA to delay the consultation until the independent research was available for comment, he refused to publish the reports until the final decision was made.

The claimants argued that they were unable to challenge the assumptions (many of which were provided by the Ministry of Justice) underpinning the outcome of the research upon which it was assumed the new model was based. Burnett J held that consultees should be provided with ‘sufficient information to enable an intelligent response’ (para 34, citing Devon CC and another v SSCLG [2010] EWHC 1456 (Admin), 21 June 2010). The accepted test for whether a consultation has been conducted lawfully is ‘whether the process was so unfair as to be unlawful’ (para 49). The court recognised that the ‘potential impact on the livelihoods of solicitors and access to justice’ (para 35) meant that a ‘high degree of fairness was required’ (para 37).

The court held that the refusal to allow those engaged in the consultation process to comment on the two reports was unlawful and so the decision to limit the number of duty provider contracts to 525 was quashed.

The MoJ then carried out a short further consultation and decided to increase the number of duty contracts from 525 to 527.

The Law Society, the CLSA, the LCCSA and two criminal firms challenged the re-consultation. They argued that, in reaching his decision, the lord chancellor had breached his Tameside duty to ‘ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly’ (SSES v Tameside MBC [1977] AC 1014 at 1065).

The Divisional Court dismissed the challenge (R (LCCSA and others) v Lord Chancellor; R (Law Society) v Lord Chancellor [2015] EWHC 295 (Admin), 18 February 2015). Laws LJ stated the ‘important truth’ that ‘[p]rofessionals whose world has changed may look the new world in the eye and find the means to live in it’ (para 42). In other words, in his view, providers would adapt to survive.

The claimants’ appeal to the Court of Appeal was dismissed and the Divisional Court’s reasoning upheld (R (LCCSA) v Lord Chancellor [2015] EWCA Civ 230, 25 March 2015).

In October 2015, the outcome of the tender was announced. A judicial review challenging the fairness of the procurement process for the new criminal legal aid contracts was issued by the Fair Crime Contracts Alliance in November 2015. The case is due to be heard by the Divisional Court in 2016. In addition, over 100 individual procurement law challenges, sought in accordance with CPR Pt 7, will be heard in the Technology and Construction Court.

It is expected that the litigation will result in a significant delay in the start date of the new contracts. ■