THE QUEEN (on the application of CRAIG GARRETT) v LEGAL AID AGENCY

A statutory review of a control order under section 43 of the Solicitors Act 1974 concerns whether the order was necessary when imposed. Revocation is a distinct remedy addressing whether the order remains presently necessary. Where Parliament has provided adequate statutory remedies, judicial review is ordinarily refused as a discretionary matter. A public-law challenge to a predictive assessment of legal-aid prospects must be assessed on the material available when the decision was made and without hindsight. Later developments may support a fresh application but do not retrospectively render the earlier decision unlawful. Delay, absence of an arguable ground, and adequate alternative remedies may independently justify refusal of permission.

The claimant brought two renewed applications for permission to seek judicial review. The first challenged the Legal Aid Agency’s refusal of exceptional case funding for representation in proceedings before the Solicitors Disciplinary Tribunal. The second challenged an SRA adjudicator’s 2016 control order under section 43 of the Solicitors Act 1974, its publication, and an associated costs order.

Permission had previously been refused by Steyn J in September 2021. The claimant relied on alleged defects in the original decision-making and on his later acquittal in criminal proceedings. The central issues were whether the legal-aid assessment was unlawful, whether judicial review was appropriate despite the statutory review and revocation routes, and whether the challenges were out of time or academic.

1. Outcome. Both renewed applications for permission for judicial review were refused. The £300 costs order in favour of the Legal Aid Agency was left undisturbed. The costs payable to the Solicitors Regulation Authority were reduced to £2,200.
2. Distinct statutory remedies. Under section 43(3) of the Solicitors Act 1974, revocation by the body that imposed the order addresses whether regulatory control remains presently necessary. Review by the Solicitors Disciplinary Tribunal under section 43(3)(a) and (3A) addresses whether the order was necessary when imposed and permits quashing, variation or confirmation.
3. Legal-aid decision. The Legal Aid Agency was entitled to assess the prospects of the proposed statutory review as poor, having regard to the protective rather than punitive purpose of a control order and the claimant’s failure to respond substantively to evidenced allegations. The assessment was a predictive public-law judgment, reviewable for unreasonableness on the material available in December 2020. The later acquittal could not be used with hindsight to invalidate that decision. It could instead ground a fresh funding application.
4. Alternative remedy and delay. The statutory review, revocation and hybrid procedures provided adequate routes for the claimant’s complaints. Judicial review was therefore a discretionary inappropriate route. The challenge to the 2016 control order was also several years late, without good reason. The publication and costs challenges had no arguable basis and were in any event far out of time.

• High Court (Administrative Court). Steyn J refused permission for judicial review on 14 and 15 September 2021. On renewal, Mr Justice Fordham refused both applications on 27 May 2022.