WAITING FOR LEGAL AID IS NOT A GOOD REASON FOR DELAY: COURT OF APPEAL DECISION

In R (Kigen) -v- Secretary of State for the Home Department [2015] EWCA Civ 1286 the Court of Appeal stated that delay caused by waiting for the Legal Aid Agency may no longer be accepted as a good reason for the court to exercise its discretion.

“…solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result. That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf.”

KEY POINT

  • A delay in complying with a time limit because of a slow response from the Legal Aid Authority will not, in future, necessarily be regarded as a good reason

PRACTICE POINTS

  • A solicitor faced with posssible breach of an order because of delay arising out of funding should advise their clients to comply as litigants in person.

THE CASE

The applicants were appealing a decision refusing an extension of time for lodging a request for judicial review. The reason give was that they were awaiting responses from the Legal Aid Agency.

THE JUDGMENT IN RELATION TO DELAY

Lord Justice Moore-Bick considered that the situation here was akin to late service of a notice of appeal. He considered the earlier authorities on the subject, in particular in relation to delays due to waiting for Legal Aid.

THE JUDGMENT
  1. Since 1988, however, much has changed, particularly in the fields of civil procedure and legal aid. The Civil Procedure Rules were introduced in 1998 partly in response to concerns that litigation had become subject to unacceptable delays. There was an increasing recognition that delay in the conduct of proceedings was damaging to the interests of the parties, wasteful of court resources and ought not to be condoned. More recently, concern over the rising level of costs in civil proceedings has led the courts to become far less tolerant of delay and inefficiency and more astute to ensure that parties comply with time limits imposed by the rules and orders of the court. At the same time there has been a significant reduction in the availability of legal aid, with the result that many of those who might in the past have expected to obtain legal aid are now forced to act in person. The increase in the number of litigants in person has imposed additional burdens on the courts, since, although the Civil Procedure Rules are written as far as possible in simple language, many litigants find it difficult to understand and apply them. This has inevitably led to an increasing number of applications for extensions of time, often supported, expressly or by implication, by a plea that the litigant did not understand the rules.
  2. The need to place a greater degree of emphasis on compliance with the rules has found its clearest expression in the cases of Mitchell and Denton, which underpin the principles which govern the court’s approach to applications for extensions of time generally. In Hysaj the court reviewed the principles to be derived from those two authorities and sought to give some guidance on the way in which they should be applied when the court is considering an application for an extension of time for filing a notice of appeal. In doing so the court considered a number of factors that it is frequently asked to take into account on such applications, including the existence of a public law claim, shortage of funds and the fact that the appellant is a litigant in person.
  3. For the reasons set out in paragraphs 40 – 42 of my judgment in Hysaj, I do not think that public law proceedings call for an approach substantially different from that which the court would ordinarily take in relation to private law civil proceedings. Part 54 of the CPR, which governs the procedure applicable to claims for judicial review, has been drafted with the particular nature of such proceedings well in mind. It has been said on many occasions that it is particularly important for such proceedings to be started promptly and pursued with diligence. There is no reason in principle, therefore, why the court should take a more relaxed approach to compliance with the rules than it would in private law proceedings; if anything, there are grounds for adopting an even stricter approach.
  4. Shortage of funds was another matter to which the court referred in Hysaj. In paragraph 43 of my judgment I expressed the view that an inability to instruct solicitors because of a shortage of funds did not provide a good reason for delay. It is an unfortunate fact that many litigants cannot afford to instruct legal representatives and are forced to act on their own behalf, but, for the reasons I gave in paragraphs 44 – 45 of my judgment, that cannot on its own provide a good reason for failing to comply with the rules. If it were otherwise, the administration of justice would cease to function efficiently as more and more litigants in person were allowed to disregard the rules by which represented parties are bound.
  5. The present case presents a combination of features that the court considered in Hysaj. First, it involves a public law claim, but not one, as far as I can see, that raises any question of wider importance. There is, therefore, no strong public interest in granting an extension of time in order to enable the point in issue to be determined. In those circumstances the court’s approach should, in my view, be the same as that which it would adopt in relation to a private law claim. Secondly, this is a case in which the appellants do not have the means to instruct solicitors to conduct the proceedings on their behalf. However, as I have explained, shortage of funds does not of itself provide a good explanation for the delay, nor does it constitute grounds for extending time.
  6. The question then arises whether the fact that the appellants had applied for legal aid and were awaiting a decision from the Legal Aid Agency is a factor which should lead to a different conclusion. This question did not arise in Hysaj, but, consistently with the approach adopted in that case, this court in ZP (South Africa) v Secretary of State for the Home Department [2015] EWCA Civ 1273 held that it should not normally be regarded as providing a good reason for delay. A litigant who has applied for legal aid is in essentially the same position as any litigant who is unable to afford legal representation. As such, he has an unenviable choice between representing himself and abandoning his claim. If he is granted legal aid, he will, of course, be in the same position as any other represented party, but unless and until he is and is able to instruct a solicitor, he retains the right to act on his own behalf.
  7. The decision of this court in ex parte Jackson was based on the assumption that a distinction can be drawn between private law and public law proceedings. The court expressed the view that in judicial review proceedings there is no true lis inter partes, thereby suggesting that the issues raised in public law cases are necessarily of public interest. In my view, that may or may not be the case; it will depend on the nature of the issues to which the proceedings give rise. There has been a very significant increase in the number of claims for judicial review, many of which are in substance little more than private proceedings between the claimant and the relevant public body rather than proceedings which raise issues of importance to the public at large. Moreover, the change in the climate of litigation which has come about since that case was decided makes it no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. It may still be a factor that can be taken into account (see Sacker v H.M. Coroner for West Yorkshire [2003] EWCA Civ 217), but no more. To hold otherwise would place those who apply for and obtain legal aid in a better position than those who, through no fault of their own, are forced to represent themselves. For similar reasons I am not impressed by Miss Radford’s submission that the fact that the appellants were granted legal aid shows that they could not reasonably be expected to act on their own behalf. Whether that was so or not depends to a large extent on the steps they had to take.
  8. At this point it is convenient to digress for a moment to deal with Miss Radford’s submission that an application was made to the Upper Tribunal for an extension of time before the time allowed for lodging the request for reconsideration had expired and that therefore a more lenient approach should be taken: see Robert v Momentum Services Ltd [2003] 1 W.L.R. 1577. In support of that submission she relied on letters dated 10th and 19thNovember 2014 from the appellants’ solicitors to the Upper Tribunal informing it that they intended to request reconsideration of their application for permission and that the delay had been caused by difficulties in obtaining legal aid. I accept that the court’s approach to an application for an extension made before time has expired is different from that which it takes to an application made after the event, since in the former case there is nothing in the nature of a sanction against which relief can be sought. However, I am quite unable to accept that the letters on which Miss Radford relied did in fact amount to an application for an extension of time. They simply informed the tribunal of what was in the appellants’ minds. There was no reference to lodging a request and certainly nothing to suggest that the appellants were seeking an extension of time in which to do so. This is not a case, therefore, in which the appellants can bring themselves within the scope of the decision in Robert v Momentum Services.
  9. In my view lodging a request to have an application for permission to apply for judicial review reconsidered is analogous to filing a notice of appeal, since in both cases a failure to do so will result in the termination of the proceedings. Accordingly, I think that similar principles apply to applications for any necessary extension of time and that, for the reasons I have given, in cases of this kind the court should adopt the three-stage approach set out in Denton, applying the guidance given by this court in Hysaj. In the present case the appellants were allowed the usual nine days in which to lodge a request to have their application for permission reconsidered. The request is made by lodging a standard form which is sent to the applicant with the order from the Upper Tribunal dismissing the application on the papers. If it is dealt with promptly it requires no more than a broad statement of the grounds for renewing the application, as is demonstrated by the present case, in which, although settled by counsel, the grounds amounted to no more than a reference to the grounds accompanying the judicial review claim form. Since the appellants had been represented by solicitors in relation to the original application, it should not have been difficult for them to complete the request and return it within time with little or no further assistance. The required fee must ordinarily accompany the request, but even that is unnecessary if an application for fee remission is lodged with it.
  10. In the present case the order refusing permission was sent to the appellants’ solicitors on 5th November 2014. On 6th November 2014 they lodged an application with the Legal Aid Agency for an extension of the certificate. On Monday 10th November 2014 the solicitors were informed that the documents were incomplete. The application was submitted again the same day. On 12th November 2014 the Legal Aid Agency refused the application and invited the appellants to show cause why the certificate should not be discharged. The solicitors responded and pressed the Agency for an early reply. A decision to extend the appellants’ certificate was made on 25th November 2014 and the request was lodged on 27th November 2014. By then it was 13 days out of time.
  11. Miss Radford submitted that the judge’s decision to refuse an extension of time was wrong because he failed properly to apply the principles to be derived from Denton and Hysaj and because he was significantly influenced by his understanding that the merits of the appellants’ case had been examined and rejected by an independent judicial authority, whose decision had been reconsidered twice on applications for permission to appeal. That, she submitted, was not in fact the case and the judge’s misunderstanding had adversely affected his identification of the factors that he had to take into account.
  12. In the course of giving his formal reasons the judge referred to the merits of the appellant’s claim in the context of his consideration of the decision in Hysaj. He did so in these terms:
“Paragraph 46 [of the judgment in Hysaj] discourages detailed argument on the merits of the case on applications for extension of time. It is enough to say in this case that the merits have been examined by an independent judicial authority, and that decision reconsidered twice on applications for permission to appeal, as long ago as 2011.”
  1. The judge was there referring to previous proceedings by the appellants challenging the Secretary of State’s refusal to allow them to settle in this country on the grounds that one of the documents on which they had relied in support of their claim was a forgery. That decision had been the subject of an unsuccessful appeal to the First-tier Tribunal in March 2011, following which permission to appeal was refused both by the First-tier Tribunal and by the Upper Tribunal. The present proceedings, on the other hand, arise out of a subsequent application based on fresh evidence, which the appellants say the Secretary of State has yet to consider on its merits. Insofar as the judge thought that the substance of the claim had already been considered and rejected, I think he was wrong, but in any event, he was in no position to assess the merits of the claim and had no reason to think that they were so poor as to detract from the force of the application. In his extempore reasons the judge also referred to paragraph 46 of the judgment in Hysaj and said that the fact that the merits had already been fully investigated had played a significant part in his decision. Although he did not say as much in his formal reasons, viewing the matter in the round, one cannot but be left with the impression that his erroneous understanding of the previous course of the proceedings significantly influenced his decision. In those circumstances the judge’s exercise of his discretion was flawed and must be set aside. It therefore falls to this court to exercise the discretion afresh.
  2. The first question for consideration, applying the principles to be derived from Denton and Hysaj, is whether the delay in this case was serious and significant. In the context of the short period of nine days allowed for lodging the request for reconsideration a delay of thirteen days cannot be regarded as trivial or insignificant. Delay of any kind in proceedings for judicial review is to be avoided as far as possible and the time allowed for applying for the reconsideration of an application for permission is kept deliberately short. In my view, although the delay was not of such a length as to affect greatly the progress of the proceedings, it called for a satisfactory explanation. The explanation provided, namely, that the appellants were awaiting the outcome of their application for legal aid, is not one that I think can be regarded as satisfactory in the circumstances of this case. The appellants’ solicitors were alive to the time limit, but appear to have taken no steps to ensure that the relevant form was lodged or to advise the appellants that they should lodge it themselves in order to preserve the position.
  3. That brings me to the overall circumstances of the case. It is difficult to criticise the appellants themselves, who no doubt followed the advice given by their solicitors, and it is fair to say that the solicitors acted with reasonable expedition in their dealings with the Legal Aid Agency. Their letters to the Upper Tribunal of 10th and 19th November 2014 show that they were aware of the passage of time and of the need for expedition, but they considered themselves to be in the hands of the legal aid authorities. It is now well recognised that there is a wider public interest in ensuring that litigants comply with the time limits laid down in the rules, but the court must also consider whether to grant or refuse relief would have a disproportionate effect on one or other party. This is not a case in which the Secretary of State can point to any particular prejudice she will suffer as a result of a period of nine days’ delay, whereas the appellants will suffer a degree of prejudice if they are prevented from having their application for permission to apply for judicial review reconsidered at an oral hearing.
  4. There remains the question of delay in commencing the proceedings for judicial review, on which Mr. Hansen relied as forming part of the overall circumstances which the court should take into account when considering whether to grant the extension of time now being sought. The appellants issued proceedings one day after the three month period prescribed by rule 28(2) of the Upper Tribunal Rules had expired, but the rules require a claim for judicial review to be issued promptly and Mr. Hansen submitted that there was no good reason in this case for leaving things to the last minute. Judge Kekic obviously took a similar view.
  5. This is not an appeal against Judge Kekic’s decision, however, which will fall to be reconsidered at an oral hearing, if this appeal is allowed. Apart, perhaps, from any delay that may have been attributable to awaiting a decision from the Legal Aid Agency, there is nothing in the history of the proceedings or in the circumstances surrounding the delay in November 2014 which suggests that the latter was more culpable than might otherwise appear to be the case. In those circumstances, I think the less said at this stage about the earlier delay the better.
  6. It may be that, in the light of the older authorities to which I have referred, solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result. That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf. Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused. However, given the degree of uncertainty that surrounded the matter, I am persuaded that to refuse an extension of time in this case would be to impose on these appellants greater prejudice than is justified by the delay.
  7. For these reasons I would, exceptionally, allow the appeal and grant a sufficient extension of time to enable the appellants to lodge a request to have their application for permission to apply for judicial review reconsidered at an oral hearing.

THE JUDGMENT OF LORD JUSTICE DAVIS

The shorter judgment of Lord Justice Davis contains
  1. I agree with the judgment of Lord Justice Moore-Bick.
  2. For the reasons there given, the discretion as to whether or not to grant an extension of time for the application for reconsideration falls to be exercised afresh by this court. I have nevertheless hesitated as to whether the discretion should be exercised in favour of the appellants. In the event, I have been persuaded that it should be. This is so in circumstances where the appellants’ solicitors had at least written to the Upper Tribunal in the interim seeking to explain the delay (even if there was no application for an extension of time) and where there may well have been a perception, based on the older authorities, that awaiting a decision of the Legal Aid Agency would in itself provide a sufficient justification for the delay. For the future, however, practitioners and parties cannot proceed having any such expectation. On the contrary, they should proceed in the expectation that any explanation based on the proposition that the delay was “only” for a few days, whether or not coupled with an explanation that a decision from the Legal Aid Agency was awaited, will not be received with indulgence by the tribunal or court. It is most important that the requirements of the Tribunal Procedure (Upper Tribunal) Rules 2008 as to time limits – in the present case, the requirements of rule 30(5) – are observed.

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One comment

  1. […] Leave was granted in this case, exceptionally, because of that general impression. But the court made clear that, in future, delays in getting legal aid granted will not be a good reason for delay. There’s more analysis of this case at the Civil Litigation Brief blog. […]

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