A recent decision of the Court of appeal in Kigen -v- SSHD [2015] EWCA Civ 1286 came as a bit of a shock to practitioners who were informed that delays created by awaiting the outcome of decision of the Legal Aid Agency were no longer considered to constitute a good reason for delay. In that case:

The application for judicial review was issued outside of the 3 month time limit (by one day) but without any explanation

The notice of request for an oral hearing (a one page form) was submitted after 22 days (the time limit was 9 days, so it was sent 13 days out of time)

The delay was due to a funding application having been made to renew the application which was decided 20 days after the date of refusal but it is also clear that although the legal aid request was made the day after the decision was received, the application was incomplete and had to be resubmitted

The Upper Tribunal refused to grant the extension of time required for the application for renewal being made out of time but granted permission to appeal to the Court of Appeal on whether the delays in legal aid constituted a sufficiently good enough reason

The Court of Appeal concluded that it was not in general a good enough reason to just be awaiting a decision by the LAA but also drew attention to a number of points that may be worth considering should a client find themselves in a similar situation:

1. The task required to file the request for an oral hearing is not so complex as to necessitate detailed work, however this would be a form that has to be accompanied by a fee of £350 (or a fee waiver form)

2. Although the solicitors had written to the Tribunal to inform them that a request for a renewal would be made, this was not sufficient as to amount to an application for an extension of time

3. The fact that the case did not raise an issue of any significant wider importance will mean that it is more likely to be treated as being on a par with private law proceedings and consequently delays would be less likely to be excused following the stricter approach taken to compliance following the Mitchell and Denton cases, even where the delay was a matter of days. The corollary presumably being that if it is a case that does raise wider issues that might constitute a reason for delay.

It is a reminder that anyone contemplating litigation will always need to be acting promptly, just awaiting a decision on legal aid is not going to be enough in the vast majority of cases.

If you need advice in resepct of a judicial review challenge, then please contact a member of the team.

Mitchell -v-News Group Newspapers Ltd [2013] EWCA Civ 1537

Denton -v- TH White Ltd [2014] EWCA Civ 906