Waiting for legal aid is not an excuse for missing time limits in judicial review cases

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The Court of Appeal has recently given judgment in a case which all those involved in public sector litigation should be aware of.

The case of R (Kigen and Cheruiyot) v Secretary of State for the Home Department [2015] EWCA Civ 1286 is factually fairly straightforward. The appellants were seeking to establish that they were entitled to be granted leave to stay in the UK. The Secretary of State rejected the application on 30 May 2014. On 2 September 2014 (1 day outside of the 3 month time limit) the appellants issued a claim for judicial review of the decision in the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal refused the claim because it was out of time, with no satisfactory reason for the delay having been given. However, this decision was not communicated to the appellants solicitors until 5 November 2014. Any request to appeal this decision should have been made within 9 days. On 6 November 2014 the appellants'' solicitor lodged an application with the Legal Aid Agency to amend their certificate. On 25 November 2014 the Legal Aid Agency granted funding. The appellants duly made an application for reconsideration on 27 November 2014, but the Tribunal declined to grant the extension, as it was made 13 days out of time.

The appellants appealed to the Court of Appeal, contending that case law supported the proposition that delay due to Legal Aid Agency funding delays should not be held against a litigant, at least in public law proceedings in which fundamental rights are engaged.

Ultimately, the appellants were successful in their appeal. The Court found that the appellants should not be prejudiced in this case due to the uncertainty about legal aid funding delays, particularly given that the initial 3 month judicial review deadline was missed by just 1 day.

The case is noteworthy due to the wider warnings the Court gave to litigants about their ability to rely on delays in obtaining funding from the Legal Aid Agency. Giving his leading judgment, Lord Justice Moore-Bick highlighted that in some public law cases, there seemed to be a belief that the wider public good in litigating these types of judicial review cases had historically excused delays caused by obtaining public funding. Lord Justice Moore-Bick highlighted that parties in private litigation would face difficulties if they tried to rely on funding issues as a reason for delay. He said he felt the same approach should be taken in public law cases. Both he and Lord Justice Davis very clearly warned parties and practitioners that, in future, a failure to lodge documents in time may well result in an application for an extension of time being refused.

Anyone who has been involved in litigation against a legally aided party is likely to have encountered delays due to opponents encountering funding issues. There will still be cases where specific circumstances could result in further time being granted to opponents. However, this case will certainly be a useful resource for public sector litigants to rely upon if they are faced with litigation timetables slipping due to funding issues.

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