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This is a challenge to the legality of the “no permission, no fee” arrangement for making a legally aided application for Judicial Review introduced by the Remuneration Amendment Regulations on the 22 April 2014. The Amendment regulations, amongst other things, give no entitlement to payment to legal service providers where permission for Judicial Review has neither been granted, nor refused. The Lord Chancellor has a duty under s1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) to ensure legal aid is made available in accordance with Part 1 of the Act.
The challenge included:
a) There is no power to make an entitlement to payment on the outcome of a case, as LASPO does not contemplate legal services will be provided without payment (this was formulated into two grounds; the strict ultra vires ground and the Padfield ground)
b) The effect of the Amendment Regulations is likely to have a “chilling effect” on access to the High Court. It was contended that legal service providers who risk not being paid will apply a stricter criteria and not likely to take up Judicial Review cases that are foe example meritorious but not straight forward.
a) rejected the challenge based on “strict” ultra vires;
b) however, found the Regulations put providers of legal services at risk in situations which cannot be said to be linked to the stated purpose of the Regulations and this was incompatible with statutory purpose. The “Padfied” ground succeeds; and
c) stated there was no need to deal with the “chilling” effect ground but if it had to decide this ground, the Court would have found the high threshold required for such a ground to succeed had not been met.