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Gudanaviciene: legal aid guidance not compatible with a right to a fair trial

Date:17 DEC 2014
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Solicitor Advocate
See also David Burrows' article  Lord Chancellor’s Guidance on Exceptional Case Funding published 15 June 2015.

Exceptional case determination: Convention breach

R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 affects all applicants for legal aid for any form of civil proceedings with family proceedings very much included. It was a very careful judgment of the full court (Lord Dyson MR Richards and Sullivan LJJ). The issue takes an applicant (or his/her adviser) immediately into the murky ‘quasi-legislation jungle’ (per Wade and Forsyth Administrative Law (11th edn 2014) at p 732) of statutory guidance. And it reminds the lawyer that every piece of delegated and – as here – semi-delegated legislation must be tested for lawfulness against its primary statutory source.

In Gudanaviciene that statutory source is Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) s 10 which is the get-out-of-gaol-free card for any civil...

Read the full article here.