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Procedure: Denton: Don’t blame the funder

The harder-edged approach to deadlines wrought by cases such as Denton v TH White [2014] 1 WLR 3926 has recently been considered in the context of delays in the grant of public funding.

Does delay by the Legal Aid Agency (LAA) rank as a good reason for granting a litigant relief from sanction where a time limit has been missed? The answer is ‘no’.

In R (Kigen & Anr) v Home Secretary [2016] 1 WLR 723, the appellants were late by one day in lodging an application with the Upper Tribunal (UT) for a judicial review of the SoS’s decision to refuse them leave to remain in the UK. An application for an oral hearing to reconsider the decision to refuse permission was lodged 13 days late. Delay by the LAA in granting public funding was cited as the reason.  The UT refused to extend time. 

In the Court of Appeal (CA) the appellants contended that case law supported the proposition that LAA funding delays should not be held against a litigant, at least in public law cases where fundamental rights were engaged. The CA rejected this. There was no reason why the court should take a more relaxed approach to compliance with rules in public law proceedings than it would in private law proceedings. Shortage of funds was not a good reason; nor did it justify extending time. A litigant who has applied for legal aid is essentially in the same position as any litigant who is unable to afford litigation.

Anyone involved in litigation involving a legally aided party will often encounter delays caused by funding decisions. The kernel of Kigen is that funding alone is unlikely to be a ground for extending time.  And waiting for a funding decision will not normally be regarded as a good reason for delay.  If a funding decision is awaited, advisors should be careful to advise their client to lodge documents with the court in time.

Derek Kerr / 4th Apr 2016


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