The effect of the Civil Legal Aid (Remuneration) Regulations 2013 was that solicitors and counsel on a legal aid funded judicial review would receive no payment for the period between issue and permission unless permission was granted.
There is a discretion on the part of the Legal Aid Agency to pay those costs if a case ended before permission but that had to be applied for and was wholly a discretion. In the case of R(Ben Hoare Bell and Others) –v- The Lord Chancellor the High Court has decided that these regulations are unlawful see (link here – Ben Hoare is already on website under ‘News’)
Despite this powerful judgment, the Government have simply re-introduced the regulations with slight adjustments (see the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015). There is a link to the regulations here:- http://www.legislation.gov.uk/uksi/2015/898/made
Once again a Legal Aid provider will only be paid by the Legal Aid Agency if either permission is granted or, if the matter settles before permission is granted without the other side agreeing to pay the costs, at the discretion of the Legal Aid Agency. The changes are that the Government have now stated that there will be payment in three other circumstances and these are circumstances that were given as examples by the Court in the Ben Hoare Bell case of why the regulations were unlawful – they were clearly not intended as the only instances when the regulations were unlawful. The three circumstances are:-
(a) the defendant withdraws the decision to which the application for Judicial Review relates and the withdrawal results in a court – (i) refusing permission to bring judicial review proceedings, or (ii) neither refusing nor giving permission;
(b) the court orders an oral hearing to consider- (i) whether to give permission to bring judicial review proceedings; (ii) whether to give permission to bring a relevant appeal, or (iii) a relevant appeal, or
(c) the court orders a rolled-up hearing.
No doubt further challenges will now come forward in the face of this cynical move by the Government.