SP, R (On the Application Of) v The Lord Chancellor

In civil legal aid work, advice on domestic law is legal work, not expert work, even where a court has described the adviser as an expert. A solicitor may therefore be engaged as an agent and paid at the applicable legal-advice rate. The funding authority is not required to pay a higher rate merely because another court permitted expert evidence or because the proposed provider quoted that rate. Where the regulations contain no specific expert rate for lawyers, the authority may use the closest appropriate comparator and must have regard to the prescribed rates.

The claimant sought judicial review of the Legal Aid Agency’s decisions refusing prior authority to her solicitors to instruct Bindmans LLP to provide expert advice about her immigration status. The underlying family proceedings concerned whether the claimant could enter the United Kingdom to be assessed as a possible carer for her children. The LAA concluded that the proposed work was domestic immigration advice, not expert work under the Standard Contract, but could be undertaken by Bindmans as agents at the ordinary legal-advice rate. The claimant challenged both the classification of the work and the rate of remuneration.

1. The claim was dismissed. The LAA’s decision was neither irrational nor wrong in law. The refusal did not deny payment for the advice; it identified a different funding route and rate.
2. Expert evidence on domestic law is ordinarily inadmissible in the civil courts, subject to the recognised exception for foreign law. The present issue concerned domestic immigration law, so section 32 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 did not apply.
3. Under the Standard Contract, Agents and Counsel undertake Contract Work, while Approved Third Parties undertake non-legal work, expressly including experts. The phrase “non-legal work” was given its ordinary meaning. Advice on domestic immigration law therefore fell within the lawyer categories and could be undertaken by Bindmans as agents.
4. Even assuming that the court order permitted Bindmans to act as experts or joint experts, that status did not justify remuneration at twice the ordinary rate. The Civil Legal Aid (Remuneration) Regulations 2013 contained no quoted expert rate for solicitors or barristers. The LAA was entitled to use the £63 hourly rate for lawyers providing immigration advice as the closest comparator, having regard to the prescribed rates. The claimant produced no evidence identifying additional work or responsibility warranting £135 per hour.
5. The court identified procedural and practical difficulties, including that the application did not clearly identify an individual expert and might not have complied with the family judge’s order. Those matters were not made the basis of the decision. The court also criticised the unnecessary public expenditure and delay caused by the proceedings.