John Ford on why he’s not taking a Legal Aid Agency costs decision lying down – and why he needs the profession’s support
For over 30 years I have run a small and effective legal aid practice in north London, focusing on working for people who depend on legal aid for advice and representation in public law disputes, including education and community care.
We survive by doing high quality judicial review and other work, for which we are rewarded appropriately by awards of costs from defendants who have let our clients down. Most of our work is completed before reaching the high cost case limit, but over the years we have learned to recognise that we need not be so dependent on the inadequate rates of pay and increasingly difficult stance taken by the Legal Aid Agency (LAA) in the assessment of legal aid costs. Our judicial review successes result in a reduction in spending by the LAA. But for this we have to have a retainer from a client, even if her difficulties were resolved long before the attempt to recover costs for providing services to her.
A decision by the Legal Aid Agency Independent Funding & Costs Adjudicators panel in August 2016 put paid to this. Because of the LAA rules for allocation of costs where counsel are involved, I now face the prospect of losing all of my firm’s remuneration (still capped at £2,250, because the section 17 Children Act judicial review claim to support a four-year-old child was settled in November 2015). The judge made factual and legal errors in his decision to make no order for inter partes costs.
We appealed and in April 2016 the Court of Appeal granted permission on the papers. The single lord justice stated that this client’s appeal had ‘a real prospect of success’. Counsel instructed in the original judicial review and the costs proceedings rates the prospects of success at greater than 60 per cent. However, this cut no ice with the LAA. Their response in pre-action correspondence and resisting my firm’s application for a judicial review reveals a serious attempt to apply the merits regulations (Civil Legal Aid (Merits Criteria) Regulations 2013 – SI 2013/104) in a way which would mean that no legal aid provider could ever pursue an appeal to the Court of Appeal where the only issue is costs.
In our view there is an issue of wide public interest at play here, which could affect the ability of providers like my firm to continue to undertake publicly-funded work. In some cases, this could mean good firms closing down. If this happens, the most needy people in our society will be further restricted in gaining access to representation to enforce their rights.
We are arguing that the regulations, as now interpreted in the defence of the LAA’s decision under challenge, conflict with the purpose of LASPO, and that this application of the regulations by the director of legal casework is unlawful.
We are seeking support from the Law Society which, if provided at all, may go no further than a modest protection against an adverse costs order.
Permission to bring a judicial review claim was refused by Lavender J on 11 January 2017, and our oral renewal application is listed for hearing on 14 February. If permission is granted, I would estimate our costs as claimant will range from £20,000 to £30,000.
We are planning to start a fighting fund to cover the costs. Any firms that may be interested in contributing should contact email@example.com or 020 8800 6464 for further details.
An essential part of the claim is that the director has construed regulation 8 of the Civil Legal Aid (Merits Criteria) Regulations 2013 without giving any express consideration of the Sch 1 Part 1 paragraph 19 of the 2012 Act.
Our reply to the director’s submissions emphasises that he misses the point raised by this claim, which is whether the defendant has correctly concluded that the lay client derives no benefit: because no benefits will inure to her from prosecuting the costs appeal, a contention that takes no account of the JFS (No.2) decision of the Supreme Court in 2009 ( UKSC 1,  UKSC 1)
It is worth remembering that the application to the Supreme Court only arose in JFS because the legal aid authorities had unlawfully refused to grant legal aid to the claimant in the first place, and this challenge may show the continuing importance of JFS to public decision-making in this extended period of austerity and its consequences for the rule of law.