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By J
26/07/2015

Legal Aid Merits Test

With thanks to James Stark at Garden Court North for alerting me to this. From Monday (27.7.15) there is an important amendment to the Legal Aid merits test in S.I. 2015/1571.

In short, “borderline” and “poor” cases are back in scope if it is necessary to prevent a breach of a persons Convention rights or EU rights. “Poor” is redefined as “more than 20% chance of success, but less than 50%”. A new category of case (which cannot be funded) is also created, the “very poor” case.

So, presumably, all Art.8 possession defences are now back within scope, even if the underlying merits are poor?

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

1 Comment

  1. chief

    I’m not sure I read this quite the same way. While I agree that this raises the possibility of some art.8 defences with borderline or poor prospects being back in scope, my take on this is that there needs to be more than just a poor or borderline art.8 defence to a possession claim. The wording in new reg.43(b) is very similar to the exceptional funding test in s.10(3), LASPO (although, admittedly, not quite the same). We know from the Guidance on ECF and from Gudanaviciene that what is needed is something more than which has an effect on the defendant’s ability to present their case if they are not represented. This may also be partly to address the situation in K and H.

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