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Court of Appeal finds that Exceptional Case Funding regime is lawful


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The Court of Appeal has found that the Exceptional Case Funding regime for legal aid is lawful, overturning the decision of Collins J in the High Court ([2015] EWHC Admin 1965). The issues are distinct to R (on the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 in that this was a generic challenge the new, amended scheme.

The leading judgment is that of Laws LJ, whose decision on the legal aid residence test was overturned rather peremptorily by the Supreme Court half way through the hearing. Briggs LJ dissents:

I have the misfortune to have reached the opposite conclusion to that of both my Lords. In my judgment the defects in the procedures for applying for ECF in the system in place at the time of the hearing before Collins J were systematic and inherent, to the extent that rendered the scheme inherently unfair, so that I would have been disposed to dismiss this appeal

Twitter seems unimpressed with the majority:




Source: The Director of Legal Aid Casework & Anor v IS [2016] EWCA Civ 464 (20 May 2016)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.