Amended exceptional case funding guidance

Amended Guidance on exceptional legal aid (s10 LASPO) has been published here.

The revised guidance requires case workers to approach the assessment of each case on an open-minded basis, with no presumption about the proportion of applications that are likely to succeed. The basic test set out by the Court of Appeal in R (Gudanaviciene and others) v Director of Legal casework and the Lord Chancellor [2014] EWCA Civ 1622 features prominently and case workers are reminded at several points that:

“The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness”

Particular factors to be weighed in the balance are:
• How important are the issues at stake?
• How complex are the procedure, the area of law or evidence in question?
• How capable is the applicant of presenting their case effectively?

It will be interesting to see if and when this translates into a shift in the statistics on grants of exceptional case funding in family cases.

4 thoughts on “Amended exceptional case funding guidance

  1. Apply that to a respondent accused of d.v. who faces losing all contact with his children and if he has anything to lose being taken to the cleaners – whose opponent is legally aided – and who is as well educated as most family litigants – and the answer should be obvious. But don’t hold your breath because respondents don’t count.

    • Well, let’s see what happens – theoretically this should open the door for more respondents – if they can be persuaded to apply.

  2. Do you think solicitor’s are more likely to attempt to apply for this now? I previously tried to apply for this as a lay person and it was impossible, though I have just checked the website and it seems you can just apply by letter now at least in theory. I know every person is likely to think that their case is sufficiently complex or important to merit funding and most of us think Article 6 of Human Rights Act is breached in our cases. I am no different, but is it worth the endless hassling of solicitor’s to see if anyone would be willing to fill in the application form?

    • I don’t know Sam – I know a few solicitors who are very wary of it as they have spent so many hours trying to get funding and they feel they cannot afford to do it, but there will be some no doubt who will have a go. I expect that some will adopt a wait and see approach and may reconsider making applications if the statistics show a marked improvement as a result of the new guidance.

      I think the Public Law Project may still be helping people to make s10 applications, but you’d need to check their website.

      The ironic thing about litigants in person making their own applications is that if they are able to fill in an application with a sufficiently coherent argument in support of funding, the LAA may well take the view they don’t need help in court! It could be a bit of a catch 22!

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