Legal Aid Ruling Signals Straitened Times

In what will be viewed as another signal of straitened times in the legal profession, the High Court was not convinced by claims that a leading law firm should be paid double the normal legal aid rate after being instructed to give ‘expert’ advice on the immigration status of a mother embroiled in cross-border family proceedings.

The mother was resident in Pakistan but her children were cared for by their father in Britain. After he fell ill, an issue arose as to the mother’s capacity to care for the children herself. She needed to come to the UK for an assessment of her parenting skills but that gave rise to an issue in respect of her immigration status.

A judge dealing with the management of the case gave leave for the mother’s solicitors to instruct an expert to give advice on that issue. The solicitors instructed the firm, which specialised in immigration work, and sought prior authority from the Legal Aid Agency (LAA) for the firm’s fees to be paid at an hourly rate of £135, more than double the £63 hourly rate normally sanctioned for immigration work.

The LAA’s refusal to grant such authority triggered a judicial review challenge which, whilst brought in the mother’s name, was, the Court found, ‘actually about’ whether the firm should receive the higher rate of legal aid payable to experts.

In dismissing the challenge, the Court noted, amongst other things, that the case management judge had envisaged that specialist immigration counsel would be instructed. Providing expert evidence for the benefit of the Court was an individual responsibility and a firm of solicitors could not, itself, ‘act as an expert’.

Ruling that the LAA’s decision was neither irrational nor wrong in law, the Court observed that the dispute over funding had caused an ‘unfortunate’ two-month delay in the underlying family proceedings. Noting that counsel had now been instructed to advise on the mother’s immigration status, the Court found that the funding issue had thus become ‘academic’ and deplored the ‘gross waste of public money’ occasioned by the case.