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

At the permission stage of a judicial review challenge to a criminal legal-aid capital contribution order, it was arguable that the assessing authority had to reconsider capital where new information showed that it had been eroded, even though the change had not been immediately notified. The words or otherwise in Regulation 28 supported consideration of information arising outside the notification route in Regulation 27. Late notification might matter if the authority had been prejudiced, but was not necessarily a complete answer.

At this stage, it was also arguable that a financial-hardship application under Regulation 29(1)(b) had been made through correspondence and should have been considered on its merits. The Court of Appeal did not determine the substantive merits.

The appellant had been granted criminal legal aid and later became liable under the Criminal Defence Service (Contribution Orders) Regulations 2009 for a capital contribution order. The Legal Aid Agency included bank funds, compensation and money previously seized and later returned when assessing capital.

After the appellant’s wife was made redundant and the appellant was imprisoned, the household used capital for living expenses. Correspondence sought recalculation and raised financial hardship. The Legal Aid Agency declined to vary or review the order. The Administrative Court refused permission for judicial review, both on paper and at renewal on 17 December 2014. The central issue before the Court of Appeal was whether the proposed challenges were arguable and whether hardship was properly before the court.

Lord Justice Longmore delivered the judgment, with Lord Justice Lloyd Jones agreeing. The appeal was allowed. Permission was granted for the judicial review of the Legal Aid Agency’s decision letter dated 30 January 2014 to proceed. The stay on the capital contribution order was maintained.

1. Under Regulation 13 of the Criminal Defence Service (Contribution Orders) Regulations 2009, every capital resource belonging to the individual at the date of the application had to be included unless it was impracticable or unreasonable to do so. The existing right to compensation was an asset which should have been disclosed. Its exclusion from the first capital contribution order was not arguable.
2. Money seized by the Revenue and Customs Commissioner remained the appellant’s property unless restrained by an order of the High Court or Crown Court under Regulation 17. There was no evidence of such restraint, and the money had been returned before the first capital contribution order. Its inclusion was therefore not arguably unreasonable.
3. For the final order, however, it was arguable that the Legal Aid Agency should have considered information that the household’s capital had been eroded to meet living expenses. Regulation 27’s immediate notification duty was not necessarily a complete answer. Regulation 28 required recalculation where relevant new information came to light, whether through Regulation 27 or otherwise. The regulations did not expressly bar consideration of changed circumstances which had not been immediately notified. Late notification might be relevant if the authority had suffered prejudice.
4. Regulation 29 provided a separate review route for miscalculation, administrative error and financial hardship. On a fair reading, the correspondence of 14 August and 7 October 2013 constituted a hardship application under Regulation 29(1)(b). The Legal Aid Agency’s refusal to consider that application on its merits was arguable. Reliance on Regulation 26 was expressly disavowed at the appeal.
5. The hardship issue was properly before the court because the claim form referred to the appellant’s witness statement, which referred to the relevant correspondence, and the Legal Aid Agency’s grounds addressed hardship. The Administrative Court was to determine the merits.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 571, the appeal was allowed and permission was granted for the judicial review application to proceed.
• High Court, Administrative Court: On 17 December 2014, His Honour Judge Elleray QC refused permission at an oral renewal hearing, following an earlier paper refusal by HHJ Worster on 6 November 2014.