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Government agrees to amend regulations to allow for legal aid certificates to be backdated

Concession made in litigation brought by Duncan Lewis Solicitors

The government has agreed to amend regulations in response to an access to justice challenge made by  Duncan Lewis Solicitors against the Legal Aid Agency and Lord Chancellor.

Duncan Lewis Solicitors is the claimant in a claim for judicial review of the Legal Aid Agency's refusal to backdate legal aid certificates, even where solicitors have made a legal aid application as promptly as possible and it is necessary to begin work in order to secure access to justice for a client before the Legal Aid Agency has granted a certificate. The claimant's contention in the litigation is that the Legal Aid Agency and Lord Chancellor have failed to recognise that the legal aid regulations must contain an implied power to backdate certificates, or are ultra vires.

In response to that claim, the government has agreed, in open correspondence, to amend the Civil Legal Aid (Procedure) Regulations 2012 to expressly allow for legal aid certificates to be backdated to the date of application for legal aid.

Duncan Lewis says that the Government's concession that backdating is necessary will help countless people to challenge decisions made by public bodies. It will avoid strong claims being stifled because of delays in the grant of legal aid. It will also ensure that solicitors can begin work as and when needed to secure the legal rights of their clients.

The defendants have informed the firm that ministers are planning to lay a statutory instrument before parliament to amend the regulations. The details and timing of the amendments remain to be seen. Duncan Lewis now plans to discuss possible terms of settlement of its claim with the defendants.

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7/10/18