With thanks to John Bolch at Family Lore.
Tag Archive for 'Legal Aid'
The LAG news blog is reporting that while Family contracts resulted in ‘carnage’ with an estimated 1300 out of 2400 firms being awarded contracts – about 54%, in Social Welfare Law the LSC is saying that it believes ‘around 70%’ of existing providers will be awarded contracts, but they are still doing ‘due diligence’ in 5 areas.
So if 46% failure is ‘carnage’, what is 30%? Two thirds of a carnage? Perhaps carnage lite? A triple decimation?
Certainly the 70% figure is not standard across the country. For example, my understanding is that there are only three SWL providers in Birmingham who were offered contracts (taking consortia as one, which may be unfair, depending how the LSC is doing its percentages). I can now publicly confirm that Community Law Partnership in Birmingham are one of the high profile and high quality private firms not to get a contract offer. CLP are asking for letters of support as they will be appealing. See Chris Johnson’s comment on our earlier post.
And then there are those who bid for a Housing/Family combination. How do we even begin to assess that? Would it be a ‘Family’ style failure rate of 46%, or would it only be the ‘better’ firms that did such a combo? No way to tell.
There is a kerfuffle in the Family sector over firms bidding for contracts without having the necessary staff in place, with other firms crying foul. If the same thing has happened in Housing, the jobs ads over the next few weeks should be interesting – staff to be in place before the October start date, of course.
Meanwhile, the Law Society continues to downplay the chances of a bringing a challenge to the contract process, with an email yesterday stating:
The Law Society is urgently seeking legal advice on the social welfare and family law tender results. However, even if there is a viable challenge, it is unlikely to provide a rapid solution to the problem firms are facing, which is why the media and Parliamentary lobbying effort is so important. The initial advice on the other civil contract tenders and results indicates that, based on available information, there is no obvious ground on which a challenge with merit could be made at this stage.
Despite how damaging the outcome has been, it is difficult to pinpoint within the mental health and immigration tenders any breach of procurement law or any decision the Legal Services Commission (LSC) has made that would be so irrational as to meet the judicial review threshold. However, the extent of the reduction in the number of suppliers in family and social welfare, which contrasts vividly with the LSC’s stated intention that the supplier base would not be significantly reduced, and risks creating major gaps in the supplier base, may give rise to additional arguments that could be mounted. We are actively keeping the situation under review.
It is however vital that each individual firm appeals any unsuccessful tender outcome, whatever the reason, within the prescribed timescales.
We appreciate many of our members have made successful bids but for the reasons outlined above with the consequent effect on clients, we have written to the legal aid minister Jonathan Djanogly requesting an urgent review of the tender results and their effect on legal aid provision.
We would urge practitioners who have been unsuccessful to raise the issue with their local MPs and media. You can help our lobbying by highlighting the issue to your MP and urging them to contact the legal aid minister.
Draft letters to MPs and Media are on the Law Society’s site.
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The results of the Social Welfare Law and combined Housing/Family contract bids are slowly coming through. I am mindful that as I write this, firms/organisations in specific areas have not yet been informed whether they have a contract and if so for how many matter starts. But I have heard enough from various areas of the country and boroughs of London that suggest thats the results are going to have a dramatic impact on the shape of housing law provision. I’m sorry if this increases the already sky high anxiety of those still waiting – over two weeks after they were supposed to be informed.
I don’t propose to go into detail, as I think it is for individual firms and organisations to decide whether or not to go public on their position. But it is clear that some well established, extremely able firms and organisations have either not received contracts or have received matter start allocations that are far too small to be practically and economically viable. I know of at least two firms that would be generally regarded as amongst the most skilled housing practitioners in the country that haven’t got contracts.
It also seems that there has been a trend in the LSC’s contract awards towards minimising the number of contracts in any given area, or borough, with some organisations receiving a large part, the majority, or, in some instances, all of the available matter starts in the category.
Small firms, unless part of a successful consortium, appear to be simply being wiped off the map as legal aid providers.
To some degree, none of this is a surprise. The LSC’s preference for small numbers of large contractors has been clear for quite some time, and the invention of the social welfare law category itself was a clear marker that the time of the one field specialist practice was over for legal aid work. But the scale on which the change being enacted is something else again and quite shocking.
Anecdotally, it seems that private practice firms are taking a particularly big hit, but we won’t really know the full picture until the dust settles. When the dust does drop, it will likely reveal a radically changed landscape for many, perhaps all, legal aid housing practitioners.
The Law Society is apparently taking advice in relation to an apparent concurrent massacre of family contracts, but it sounds dubious on the practical purpose of a challenge.
For disclosure, my firm is OK, so I’m commenting from a position of relative certainty.
If anyone wants to leave comments about their firm or organisation’s result and position, feel free. But I would ask that people don’t add comments about other firms that they know or have heard about. For a public forum that information really has to come from those concerned.
[Edit: According to the ilegal forums, even if you have a letter with your matter start allocation, things might not be as they seem. At least one provider has had a follow up letter from the LSC saying:
We have discovered an error in the number of matter starts allocated to you in that letter. This error was caused by an issue in our database used to calculate awards where bids were tied, as once it had allocated to the minimum matter starts it pro rata’d the remaining matter starts between bidders without taking into account the number of matter starts bid for and capacity cap.
What can one say? The LSC may not be long for this world, but it is leaving us something to remember it by.]
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Housing Minister Grant Shapps has now confirmed that not only the National Landlord Register is finished as a proposal. Also dead in the water are regulation of letting and managing agents, and compulsory written tenancy agreements.
Councils are ‘urged to use the wide range of powers that they already have at their disposal’ to deal with bad landlords. Quite who is to deal with dodgy letting and managing agents is not clear.
No further regulation of the private rental sector is to be expected.
In other news, cuts of £360 million to Criminal legal aid are confirmed. Civil legal aid shivers at the footstep on the stair…
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The people of the UK have spoken! And with one mighty voice, said “Um, errr…” (as of 8 am Friday)
So, in the meantime, here is something that I wasn’t going to mention, at all. But then I was told by some of the others that, should the highly unlikely actually happen, they would announce it.
And on reflection, I thought credit should be properly distributed in any event, so…
One of the Nearly Legal team is a finalist in the Legal Aid Lawyer of the Year awards. That person is in fact, me. However, given that this blog has assuredly played a large part in this surprise, it is the efforts of the NL team as a whole that are really being acknowledged.
As it is quite fantastically improbable that I will actually win the award, this is an appropriate moment to announce that I’m not going to win it on behalf of the whole team.
As to which award, let’s just say it puts to rest any notion that lawyers don’t do irony.
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An anecdotal rant, for which forgive me. Sometimes one needs to vent, but this is hardly an unusual situation. It is ‘just’ an example of the viciousness of the public funding boundaries. I’ve combined a few instances in what follows, and changed details for the obvious reasons, but all the salient points are true.
Let us say that I just saw a prospective new client, who had received notice of warrant. She was a Council secure tenant and the issue was rent arrears of several thousand pounds. Various reasons given, but alas none of them involving housing benefit.
The original possession order – which she didn’t have to show me – was from about 2004 judging by the claim number. According to the client, there had been two previous stay applications, where terms were c. £5 per week towards the arrears. Also at some point, the arrears had been paid off, but then built up again.
Admittedly there is an absence of documents, but my nose is telling me that there may well have been procedural issues, either on the SPO, on its enforceability or obtaining a warrant now. Could be wrong, of course, but there was that faint but distinctive odour of cock-up by the Claimant.
After a chat, it also appeared that there was significant disrepair at the flat and had been for some 2 years or more, including long term water penetration through a bedroom ceiling. There had been inspections but no works by the Council. However, although I couldn’t be sure without the possession order, the odds were that she had been a tolerated trespasser from 2004 to May 2009.
Sounds like an application to stay with disrepair counterclaim? Possibly with either a Schedule 11 Housing and Regeneration Act 2008 application for the replacement tenancy to be treated as continuous (as per Litchmore) or to vary the possession order to a Postponed Possession Order under s.85 Housing Act 1985, to get the full period of disrepair. Certainly that is what I was thinking.
And then, the client had two young children, one with a significant disability, and had serious health problems herself.
So, bang out an initial letter asking for stay by consent and variation of the possession order to a PPO, get hold of the documents then draft up the application?
No.
The prospective client worked. The combination of wage, tax credit and child benefit took her just over the gross income cap for legal aid eligibility, though child care costs and other deductions would have put her in ‘eligible with a contribution’ territory otherwise. No public funding – on the basis of that 50 quid or so a month gross.
A CFA? – after all those are supposed to enable access to justice? No. On the basis of the client’s account of the disrepair (and who knows what might have come out on the documents) even my highest estimate of quantum would be at roughly the level of the arrears. The odds of doing better than the arrears and thereby having a sniff of a costs award were, frankly, touch and go at the very best. This was not going to be a quick or cheap case, plus there would be necessary disbursements (expert fees, court fees on the counterclaim). On an dim and distant chance of costs – couldn’t do a CFA.
Pro-bono? With the best will (and amount of free time) in the world, that runs into the same problems. Hefty disbursements, certainly way beyond anything the client could fund (if she could, I’d say pay off or down the arrears now and then I’ll do a disrepair claim on a CFA). Even if I could do it for free, it would not be possible.
And yes, I looked at the outside chances – insurance policies etc.. No.
As far as I can see, I can’t do the case. There is – at least on the prospective client’s account – a good shot at not just staying eviction but reducing, even perhaps eliminating the rent arrears and of course getting repairs done. But to bring a counterclaim of that sort and to carry it through adequately unavoidably takes money, even if just for disbursements.
I think she likely has a fair chance at a stay application in person, although she is probably not going to be great in front of the DJ. But that disrepair claim, the repairs and her rightful damages are going to go by-the-by, as is the chance to stabilise her situation. And of course, she may be evicted.
And this is the result of £50 per month, although it could equally be £1 per month. If you are over the gross limit, you are over.
Of course, we all know this already and have been through it many times. But sometimes it drives me up the wall. Just saying.
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The Ministry of Justice response to the ‘Legal Aid: Refocusing on Priority Cases’ consultation is now out, with the MoJ’s final proposals [link to pdf]. Although the responses to the consultation appear to have been pretty universally negative, the MoJ is going ahead anyway.
The report announces that ‘We share the view of Lord Justice Jackson that legal aid should remain in important areas like housing and judicial review.’ However, it appears that in order to save legal aid it has now become necessary to destroy it, bit by bit. The headline changes are:
Improve the way that cases involving human rights or public interest are handled by transferring cases that depend on these issues to receive funding to a new committee for advice on their merits. This will help to ensure that legal aid is awarded to meritorious cases.
Ensure that cases granted legal aid on the basis that the proceedings will bring benefits to others have a realistic prospect of delivering such wider benefits.
Detect fraudulent legal aid applications earlier, by checking with the unfunded opponent to ensure that the applicant is financially eligible for legal aid, with safeguards for domestic violence or urgent cases.
Tighten the funding rules for granting legal aid for judicial review cases to ensure that funding is directed towards meritorious cases.
Restrict funding for low-value damages claims brought as part of a multi-party action. This will help to ensure that limited resources are available for higher-value cases, or cases brought by individuals.
Tighten access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, with safeguards for important human rights cases.
Ensure that where legal aid funds a community action, the legal aid contribution mirrors the proportion of the affected population who are actually eligible for legal aid.
Thankfully, some of the loopier proposals have been dropped. These included:
(a) balance disadvantages and benefits in assessing public interest; (b) invite members of the public and/or public sector body representatives on to the funding committee; (c) appoint the SCU director as the Chair of the new funding committee; (d) restrict legal aid for individual low value damages claims; (e) require additional reconsideration of merits in judicial review; and (f) withdraw solicitors’ delegated powers to self-grant judicial review funding in urgent cases.
But what is left is not going to make for happy reading. Family solicitors are already quaking at the idea that there will be a two week period where the opponent gets to make representations about whether the party applying is actually eligible for legal aid (although not domestic violence or child protection/abduction cases). Cue bitter battles over financial disclosure before funding is even granted. But this is just a pilot, with the aim of a roll out to all areas. It will not apply where the client is at imminent risk of losing their home.
On funding public interest cases, the test will now be:
(i) the case has the potential to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question);
and
(ii) the case is considered on its particular facts to be an appropriate case to realise those benefits.
On public interest and special cases:
We intend to proceed to establish a ‘special controls’ regime for individual cases or types of cases which differ from the mainstream of civil legal aid cases. These cases are: (a) Multi-Party Actions; (b) appeals to the Supreme Court; (c) cases with only ‘borderline’ prospects of success which rely on significant wider public interest or significant human rights issues in order to receive funding; and (d) cases where the costs might exceed £250,000 if they proceeded to a contested trial or final hearing (or for Court of Appeal cases, to the conclusion of that appeal stage).
There will be a new Special Controls Review Panel, with one or more members from consumer groups “The panel will not make the final decision about whether funding should or should not be granted. The panel will not have the power to make the final determination of any issues, other than the legal assessment of prospects of success.” – the final arbiter being the Director of the Special Cases Unit. What this appears to mean is that Which? will be assessing the prospects of success of that Supreme Court appeal you want to bring.
Multi Party Claims where for damages only will have to be above a threshold of £5,000 damages per client, rather than the current approach of aggregating the individual claims into a lump amount.
On judicial review, the presumption of funding where permission had been granted is to be removed, apparently because the LSC was upset about not being able to assess the merits of the case for themselves, where a High Court judge had already done it. The same test will now apply pre and post permission, although the LSC will ‘give weight’ to the grant of permission in carrying out the assessment.
The Funding Code will be ‘clarified’ so that funding for judicial review will only be granted where the client is seeking a material benefit for themselves or their family. Funding will not necessarily be withdrawn ‘in a case where the client secures a satisfactory outcome, but the general issue remains unresolved’, though.
The proposal to end use of delegated powers to fund urgent judicial review claims has been dropped, partly because the LSC eventually dug up some figures showing the success rate was the same for delegated powers and non-delegated powers cases, the clear implication being that the powers weren’t being abused.
All this is intended to on the statute books by April 2010…
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‘What!’ I hear you say, ‘wasn’t the final Jackson report on costs released on 14 January?’
Why yes it was. All 584 pages of it. But amid the headlines about scrapping CFA success fees and recoverable ATE insurance premiums, introducing contingency fees, and of course fixed costs for the fast track, for housing lawyers it comes down to a few paragraphs which largely amount to… wait and see. Here, filleted for your ease and comfort are what look like the key bits to me.
Jackson LJ notes that housing law is a hideously complicated mess (my paraphrase), that this is likely to push up litigation costs, and that the Government proposes to do nothing about it, despite the best efforts of the Law Commission.
Chapter 26 Housing Cases Recommendations 7.1
(i) The Government should reconsider undertaking a simplification of substantive housing law, as proposed by the Law Commission in 2003, 2006 and 2008.
(ii) Where a landlord could use PCOL to issue possession proceedings but chooses to issue manually, he should only be able to recover an amount equivalent to the PCOL issue fee.
(iii) The Rent Arrears Protocol should be amended in order to set out what steps should be taken by landlords, so as to comply with their obligations under ECHR article 8.
(iv) Paragraph 24.2 of the Part 52 practice direction should be amended in order to set out what categories of documents should be lodged by the respondent in homelessness appeals and when these should be lodged.
(v) Consultation should be carried out on the proposal that where a housing claim is settled in favour of a legally aided party, that party should have the right to ask the court to determine which party should pay the costs of the proceedings.
Overall, all possession claims in the fast track should be fixed costs (as most are already) but as for the right level of fixed costs, see below…
Judicial review Chapter 30: Recommendations at 5.1
(i) That qualified one way costs shifting should be introduced for judicial review claims.
(ii) That if the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs.
Nuisance Chapter 31
Aside from the general points that there should not be recoverability of success fees or ATE insurance premiums, both civil nuisance claims and statutory private prosecutions are pretty much left alone. Of course there is no legal aid for an EPA prosecution, so any success fee would have to come out of the client’s damages as a contingency fee.
But on the big points – fast track fixed fees for disrepair claims – we are left in the dark, at least for now:
Chapter 15
6.12 The position at the facilitative meetings. The data available at the facilitative meetings were insufficient for the purpose of producing any matrix of fixed costs in respect of possession claims or HD claims. Concern was expressed by the participants that there were so many variables that fixing costs was impossible.
6.13 Housing disrepair cases. HD cases are a matter of particular concern, because claims with a value between £1,000 and £5,000 fall within the fast track. This is the only area of litigation (apart from personal injury) where, for policy reasons, such low value claims are included within the fast track.
6.14 Possession claims. In possession claims it is normally the landlord who obtains an order for costs. In my view, there would be benefits for both parties if the costs of such proceedings (where they fall outside the regime of CPR rule 45.1) were fixed. It should also be noted that in their recent report “Turning the Tide” AdviceUK, Citizens Advice and Shelter recommend that: “The Ministry of Justice should consider introducing a fixed fee regime for mortgage possession claims”.
6.15 Professor Fenn is currently exploring the possibility of obtaining further data on housing cases. He anticipates completing this exercise and providing an analysis of any such data by 31st March 2010. Subject to what the data may reveal, it is my intention to invite the submissions of both landlord and tenant organisations upon that data before recommending any matrix of fixed costs for fast track housing cases. I hope then to be in a position to recommend a matrix of fixed costs for possession claims and HD claims, drawing on the advice of the Senior Costs Judge and the CJC.
6.16 In recommending any matrix of fixed costs for housing cases, there are two matters which I shall take into account. First, lawyers who specialise in housing depend upon recovered costs in cases which they win, in order to cross-subsidise their other activities. This is because much of the work of those solicitors comprises providing advice and assistance to clients on legal aid. Legal aid rates for advice and assistance have fallen far behind inflation in recent years, although the move to standard fees may have allowed for some efficiency savings. The second matter is the availability of solicitors firms and law centres which are willing and able to undertake housing work in areas where tenants need their services: see PR [Preliminary Report PDF] paragraphs 31.2.6 and 31.5.1. It is important not to set fixed fees at a level which exacerbates that problem.
6.17 An alternative approach to low value housing disrepair claims. An alternative approach to low value HD claims might be to set up an ombudsman scheme to deal with such claims. This is the sort of area where, traditionally, ombudsman schemes have proved highly effective: see “Civil Justice in England and Wales – beyond the courts. Mapping out non-judicial civil justice mechanisms” by Dr Magdalena Tulibacka. If such a scheme is introduced and proves successful, it might then be possible to make £5,000 (rather than £1,000) the boundary between the small claims track and the fast track. This would bring HD claims into line with all other litigation apart from personal injury claims. This is not a recommendation which I make, because the proposal was not canvassed in the Preliminary Report. It is simply a matter which I raise for possible future consideration.
So, this boils down to ‘there should be fixed costs for disrepair (and possession) but we have no idea what those costs should be. We’re going to try to get some more data and tell you in a few months.’
Actually getting the data, with sufficient detail and comparison points to make it of use in the statistical number crunching, will, I humbly submit, be a nightmare. This is simply not a standardised production-line field, unlike say fast track PI. Even if the detailed figures, end points and outcomes can be obtained, I suspect (on a purely anecdotal basis, obviously) that there won’t be a neat pattern with a few outliers.
This might, just maybe, be the sound of fixed costs for fast track disrepair running out of steam as a practical proposal. Or I may be being ludicrously hopeful.
And of course, the report was commissioned by the Judiciary – the Master of the Rolls. Whether the MoJ take it and implement some or all is another matter entirely.
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The Ministry of Justice has published its ‘Implementation Plan’ in response to the recommendations of the ‘Legal Advice at Local Level’ steering group. The plan is here [pdf]. The issue is principally the effects on NFP advice providers of the impact of fixed fee Legal help scheme and the introduction of CLACs and CLANs.
Notable are concerns that fixed fees don’t work for those dealing with particularly complex cases or difficult clients, with an action plan to consider varying the fixed fee scheme, and a study of potential pressures towards cherry-picking.
My jaw dropped at this, though:
We recommend that the LSC should take steps to monitor the impact of the establishment of a CLAC or a CLAN on other funding streams in the area, and should aim to involve other existing funders of local advice in plans for a CLAC or a CLAN wherever possible.
We recommend that the LSC monitors the impact of the establishment of CLACs on local advice providers, including the potential for future competition in the area.
Action
At the time that the Commission consulted on and published the CLS Strategy, an impact assessment was not carried out on the proposed policy to introduce CLACs and CLANs. LSC has agreed that in future a full equalities impact assessment should be carried out as part of the process of setting up a CLAC or CLAN. The EIA will be carried out at the same time as the needs analysis and will be subject to formal consultation. The outcome of this analysis will then inform the specification and performance standards for the service and again there will be consultation on that specification.Part of the needs analysis and impact assessment will be to identify other funding streams that may be affected as part of the new service. This may be funding that is received by providers who also receive funding from the LSC and/or local authority or funding that is received by other providers. Having identified those other sources of funding, LSC will contact other funders to see what involvement, if any, they would like to have with the joint commissioning process.
So, let me get that straight. CLACS and CLANS as a policy were introduced without carrying out any impact assessment. No impact assessment on other funding streams or apparently on providers, including an Equalities Impact Assessment, has been carried out by the LSC in the setting up of any existing CLAC.
If this is truly the case, I am astonished there hasn’t been a challenge to the establishment of a CLAC or CLACS on that basis, but there we go…
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Now, this is a bit of an oddity. Mohammadi v Shellpoint Trustees Ltd & Anor [2009] EWHC 1098 (Ch) was an appeal from the Supreme Court Costs Office. It concerned when a person should have the protection from liability for costs under s.17 Legal Aid Act 1988.
Mrs Mohammadi was a leaseholder who had pursued a disrepair claim, beginning in about 1993, reaching trial on disrepair and forfeiture in 2002, at which she was successful and an appeal to the Court of Appeal, at which she was partially successful, with an order for 75% of costs overall.
Mrs Mohammadi, in the course of this litigation, had had no less than three, overlapping, legal aid certificates. Two of these were in issue:
Certificate W
This was granted on 12th September 1990, discharged on 5th November 1996, reinstated on 16th December 1996, discharged again on 23rd March 2001, reinstated again on 1st October 2001 and finally discharged on 24th July 2002.Certificate E
This was granted on 20th October 1993, discharged on 19th June 2001, reinstated on 1st October 2001 and finally discharged on 24th July 2002.
At this point, those of us dealing with the LSC at present will be scratching our heads. A discharged certificate is ended. ‘Reinstatement’ , let alone twice, a bewildering idea. And indeed, the concept appears to have been alien to the 1989 Regulations involved here as well. But let us press on.
On 14 September 2005, the LSC had written to Mrs M, setting out this history and stating that she was not publicly funded in the periods between discharge and reinstatement. But on 6 July 2007, the LSC wrote:
One other matter needs to be added to the above information – at various times your certificates were discharged and then reinstated. I should point out that the reinstatement of the certificates following a discharge means they were deemed never to have been discharged and as far as costs protection is concerned, you would have been covered for work done within the scope of the certificates from their original issue dates (23/8/1990 and 20/10/1993 respectively) until their final discharge dates (24/7/2002 for A/N/3 and 16/4/2004 for A/N/2).
After the first discharge in Nov 1996, Mrs M’s then solicitors wrote to the other side, saying she was proceeding as a litigant in person. She appeared in person at a hearing. In December 1996, her new solicitor went on the record. In July 1999 there was a change of solicitor, and in November 1999 the other side received notice of amended certificate and change of solicitor.
After the discharge of one certificate in March 2001, Mrs M again acted in person in an application to transfer to the LVT. The other certificate was discharged in June 2001. In October 2001, the other side were served with notice of acting for new solicitors and re-instatement of both certificates. Following a hearing in May 2002, Mrs M discharged those solicitors and again acted in person at a hearing in June. She then instructed new solicitors privately and the certificates were discharged in July 2002.
The issue was whether Mrs M was a ‘legally assisted person’ for the purposes of the Legal Aid Act 1988 in the periods when the certificates were discharged.
Mrs M said that she was.
She was not “acting”, she was simply holding the line until she could find another solicitor. She was certainly not conducting litigation, she was simply appearing at hearings until she could find a new firm of solicitors to take her case, the old ones having been dismissed by her or ceased acting for her for some other reason.
She also relied on the LSC letter of July 2007 as saying she was covered throughout.
The respondents said she wasn’t:
Mrs Mohammadi was only to be regarded as a legally assisted party in the litigation within the meaning of section 17 during such period as she was in receipt of legal advice and assistance from solicitors pursuant to a legal aid certificate, that during periods between the termination of the retainer of one firm and the retainer of another firm she was not therefore a legally assisted party and that, a fortiori, during any part of those periods in which she took active steps in the proceedings as a litigant in person, she cannot have been a legally assisted party.
Held:
There was nothing in the 1989 Civil Legal Aid Regulations about reinstatement or its effects, so these were of no help.
S.2(11) of the 1988 Act defines ‘legally assisted person’ as
Any person who received, under this Act, advice, assistance, mediation or representation and, in relation to proceedings, any reference to an assisted party or an assisted party is to be construed accordingly
Though dates of discharge of certificate, or even solicitors ceasing to act would not be precise indicators of when a person would stop being an assisted party, it is certain that from the date they start to act in person they are not assisted, even if they are actively seeking representation.
Further Mrs M was not an assisted person once a firm of solicitors had informed the other side they had ceased to act. Once another solicitor served notice of acting under a certificate, she was again protected.
when a legally assisted person’s solicitors have ceased to act, without another firm being retained under a legal aid certificate, and that fact has been communicated to the opposing party, then from the moment of that communication the litigant ceases to be a legally assisted person.
‘Reinstatement’ of a certificate did not give retrospective protection for the whole period, whatever the LSC had meant in its letter of July 2007, at least as far as that involved costs protection against the other side.
Mrs M’s intentions during the relevant periods where not relevant. There was also no reason the other side should be in a state of suspense over whether there was protection or not, once they had been told a certificate had been discharged.
Mrs M was therefore liable for the proportion of the respondents’ costs for the relevant periods. The costs judge’s findings upheld, remitted for sorting some details of the relevant bills for the relevant periods.
This is perhaps of historic interest, given the replacement of the 1988 Act, but some of the general points about when a person ceases to be protected will be of continuing significance, going a bit further than Burridge v Stafford [2000] 1 WLR 927.
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