Solicitors who miss deadlines because they are waiting for a Legal Aid Agency funding decision can no longer rely on this alone as grounds to apply for an extension of time, the Court of Appeal has ruled.
Instead, they have to proceed without knowing whether they will be paid, or advise their clients to act as litigants in person.
Lord Justice Moore-Bick, vice-president of the Court of Appeal’s civil division, said: “It may be that, in the light of [older authorities], solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result.
“That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf.
“Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused.”
Lord Justice Davis joined him in warning lawyers and parties that they could not expect a Legal Aid Agency delay to “in itself provide a sufficient justification” for missing a deadline.
“On the contrary, they should proceed in the expectation that any explanation based on the proposition that the delay was ‘only’ for a few days, whether or not coupled with an explanation that a decision from the Legal Aid Agency was awaited, will not be received with indulgence by the tribunal or court.”
In R (on the application of Kigen & Anor) v Secretary of State for the Home Department  EWCA Civ 1286, a husband and wife were seeking to establish that they were entitled to leave to remain in the UK. The home secretary refused, and the application for judicial review of this decision was refused on the papers because it was submitted a day late, for which the judge said there was no satisfactory explanation.
The applicants then sought to have this decision reconsidered at an oral hearing, but were 13 days out of time for doing so. The judge refused an application for an extension of time, but he granted leave to appeal so that the Court of Appeal could consider whether delay awaiting a decision of the Legal Aid Agency still provided a good reason for failing to comply with time limits.
Though the case was before the Upper Tribunal, it was accepted that there should be a common approach across the CPR, tribunal rules and court orders.
Referring to the guidance in Denton, Moore-Bick LJ said there was no reason why public law proceedings should be dealt with in a substantially different way from private law cases
“There has been a very significant increase in the number of claims for judicial review, many of which are in substance little more than private proceedings between the claimant and the relevant public body rather than proceedings which raise issues of importance to the public at large.
“Moreover… [it is] no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. It may still be a factor that can be taken into account, but no more.
“To hold otherwise would place those who apply for and obtain legal aid in a better position than those who, through no fault of their own, are forced to represent themselves.”
In the case before him, however, the judge ruled that “the degree of uncertainty” that surrounded the issue meant that, “exceptionally”, he would allow the appeal.