Northern Ireland High Court: Declaration granted in respect of 12-week delays in payment of lawyers’ legal aid fees

Delivering judgment for the High Court, Mr Justice Gerry McAlinden determined: “The statutory duty which is a straightforward duty to pay legal professionals for work done on foot of civil or criminal legal aid certificates cannot legitimately be interpreted as allowing such a degree of flexibility in respect of payment times.”

Paul McLaughlin KC and Laura King appeared for the applicants, instructed by Elliott Duffy Garrett. Dr Anthony McGleenan KC and Philip McAteer appeared for the Department of Justice (DOJ), instructed by the Departmental Solicitor for Northern Ireland.

Background

The applicants alleged a “historic and continuing failure” on part of the respondent to assess fee claims and to authorise payment for work carried out under criminal and civil legal aid certificates to barristers and solicitors within a reasonable period, contending that the present period of approximately 12 weeks for payment is unreasonable.

The applicants brought judicial review proceedings seeking declaratory relief, to the effect that the respondent is obliged to assess fee claims within a reasonable period of 10–30 days from receipt of a valid claim or conclusion of taxation, that the respondent’s practices and policies were ultra vires the Access to Justice (Northern Ireland) Order 2003 and the regulations made thereunder, and that the respondent’s budgetary allocation decisions during 2023/2024 were unlawful insofar as sufficient funds were not allocated to meet its liabilities to pay valid claims for fees.

The High Court

Mr Justice McAlinden stated that there was no dispute that payment should be effected within reasonable timescales so as to avoid defeating the statutory purpose of the relevant legislative provisions; however, the judge noted that the parties clashed on how the concept of reasonableness should be determined.

In that regard, the judge opined observed that the central question for determination was “whether the statutory duty to pay properly presented bills permits such flexibility in the fulfilment of that duty or whether the approach adopted by the LSA to the payment of properly presented bills which involves the manipulation of timescales to ensure than it lives within its annually allocated budget constitutes a breach of the duty to pay properly presented bills”.

The court pointed out inter alia that there were no express time limits on the respondent’s statutory duty to pay properly presented bills, that government departments and public bodies in general are required to operate within their annual budget allocations and that the courts generally should not involve themselves in the scrutiny of those allocations, but that when the relevant legislative framework was amended in 2005 imposing standard fees for most of lawyers’ work in the Crown Court, the DOJ had emphasised that one of the advantages thereof would be the prompt payment of fees.

Examining the payment strategy of the Legal Services Agency (LSA), Mr Justice McAlinden observed that when the LSA receives its budgetary allocation for the upcoming financial year, “hard decisions” have to be made about how to deal with the previous year’s backlog of unassessed/unpaid bills and how to deal with incoming bills during the current financial year. 

The judge explained: “In order to promote fairness and equity, bills are not assessed in strict chronological order but are taken for assessment from the various workstreams… and the decision in relation to which bill to process next is informed by such matters as the volume and value of claims in each payment line and the processing capacity known to be available.”

Highlighting that the LSA was also keen to ensure continuity and regularity of payments, the court noted that the LSA examines its budget and aims to process bills in such a way so that one 12th of its overall budget is paid out each month during the financial year, meaning that only so many bills can be processed each month, resulting in time intervals between the submission of bills and their payment.

The court noted the DOJ’s contentions that the court should not trespass into scrutinising governmental funding and spending decisions but if that was permissible, the court should be slow to declare that the DOJ and/or the LSA did not comply with their statutory duties as they were not acting unreasonably in a public law sense.

Mr Justice McAlinden opined that “these arguments are missing the key point in this case… I am of the view that one has to distinguish between what can be termed to be evaluative duties on the one hand such as a duty to properly fund policing or probation services in Northern Ireland and a straightforward statutory duty to pay properly presented legal aid bills on the other.”

The judge continued:

The court noted that while a degree of flexibility must be afforded to the payor, in the absence of exceptional circumstances that flexibility cannot legitimately extend beyond practical and operational matters such as the time necessary to processing a bill and staffing resources.

It “certainly cannot extend to allowing the payor to postpone processing and payment so that there is a time interval of 12 weeks between the presentation of the bill and the payment of the bill as a means of providing the responsible department with a greater degree of flexibility in the performance of its evaluative duties to fund other bodies or agencies or as a means of ensuring that the payor does not exceed its budgetary allocation”, the court said.

Expressing his sympathy for the DOJ and LSA in circumstances where they are “doing their level best” to operate a legal aid system in the face of underfunding, Mr Justice McAlinden nonetheless agreed to grant a declaration in favour of the applicants.

The court found it unnecessary to reach a conclusion on a secondary issue raised as to whether a ‘Regulatory Impact Assessment’ (RIA) should have been performed by the DOJ prior to implementing its fund allocation strategies.

Conclusion

Accordingly, the High Court made a declaration that: