Legal aid for judicial review

Judicial review proceedings are expensive. The risks to an unsuccessful claimant both in their own legal fees and in exposure to the successful defendant's fees are enough to put the majority of potential claimants off bringing challenges. There are however, a limited number of firms able to bring judicial review proceedings with the benefit of legal aid, where their clients meet the means and merits criteria.

Two recent decisions of the Administrative Court have considered the circumstances in which legal aid should be granted, in particular, when a benefit is obtained through judicial review proceedings, pursuant to paragraph 19 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("Paragraph 19 of LASPO").

Paragraph 19 of LASPO provides as follows:

"(1) Civil legal services provided in relation to judicial review of an enactment, decisions, act or omission.

...

(3) The services described in sub paragraph (1) do not include services provided to an individual in relation to judicial review that does not have the potential to produce a benefit for the individual, a member of the individual's family or the environment.

(4) Sub paragraph (3) does not exclude services provided in relation to a judicial review where the judicial review ceases to have the potential to produce such a benefit after civil legal services have been provided in relation to the judicial review..."

In summary, legal aid for judicial review proceedings will not be granted where the particular challenge envisaged does not have the potential to provide a benefit for the proposed claimant, their family or the environment.

The decisions of Murray J in Liberty v Director of Legal Aid Casework [2019] EWHC 1532 (Admin) and the more recent decision Murray J of R(FF) v Director of Legal Aid Casework [2020] EWHC 95 (Admin) provide guidance on when construing when such a "benefit" will be produced. The relevant principles are as follows (as set out in R(FF) at[60]-[61]:

1. Whether proposed judicial review proceedings would have the potential to produce a benefit for an individual or a member of his family is a mixed question of law and fact.
2. As such, it is a matter for determination as a question of law after the relevant decision-maker has found and then evaluated the relevant facts that are said to give rise to the potential to produce a benefit.
3. The starting point is that "benefit" should be given its ordinary, broad meaning. It is not necessary to consider the degree or quality of the benefit provided that there is some benefit, but the benefit must have some reality, some substance, that goes beyond the "sufficient interest". That is a matter of evaluation.
4. The benefit must be real. It is not necessary, therefore, for Paragraph 19(3) to have used the words "real benefit". That the benefit must be real goes without saying. Similarly, the standard would be no different had the words "material benefit" been used, using "material" simply to mean having some substance. The benefit does not have to be financial or otherwise result in an improvement in the material conditions of the life of the applicant or of a member of their family.
5. Whether there is a benefit to an applicant for civil legal aid for purposes of Paragraph 19(3) is a hard-edged test. As a matter of law, there is a right answer. It is not a matter of discretion for the Director, and it is not simply a case of considering whether the Director's judgment on the question is reasonable.
6. A benefit to an applicant that is "merely" psychological and/or involves the fulfilment of a moral obligation may, in an exceptional case, be a sufficient benefit for purposes of Paragraph 19(3), either alone (in a truly exceptional case) or, more likely, in combination with other factors. Clearly, however, any such psychological benefit or benefit involving the fulfilment of a moral obligation that proposed judicial review proceedings have the potential to produce for the applicant or a member of the applicant's family must go beyond what would otherwise be involved in purely representative litigation. Otherwise the legislative purpose of Paragraph 19(3) would be defeated. The decision to be made is fact-sensitive, a question of degree and a matter for evaluative judgment by the decision-maker.
7. Accordingly, in considering the question of whether proposed judicial review proceedings have the potential to produce a benefit for an individual or a member of their family, the Director needs to make an evaluation of the evidence provided in support of the application, make findings in relation to any disputed facts and then decide whether, as a matter of law, there is a potential for the proposed judicial review proceedings to produce a benefit. The usual principles will, of course, apply as to the Director's findings of fact, to which appropriate deference will be given by the court on a judicial review of the Director's decision. But where, by reference to those findings of fact and/or to undisputed facts, the Director's decision is wrong, that will be an error of law. 

Accordingly, those applying for legal aid on a proposed claimants behalf need to consider the benefit to be obtained by their client in line with the above guidance. Where the Director of Legal Aid Casework's decision rejects an application for funding, it would be wise for that decision to be considered in light of the above principles to determine whether the decision was correct. Where it appears it was not, judicial review proceedings should be threatened in a bid to alter that decision.