T, R (on the application of) v Legal Aid Agency & Ors

Adam Tear, Solicitor Advocate (instructed by Duncan Lewis, Solicitors) for the Claimants Barbara Hewson, Counsel (instructed by Legal Aid Agency) for the Defendant George Butler (instructed by London Borough of Ealing) for the Interested Party Hearing dates: 17 April 2013 ____________________

District Judge Gibson was therefore required to consider whether the instruction of MFS was necessary. None of the parties before her, including LBE counsel for whom attended the hearing before me to support the claimants' claims, dissented from the view that the instruction of MFS was necessary but it was incumbent on her to satisfy herself that this was indeed the case.

The head note helpfully summarises the conclusions of the President and reads, so far as material, as follows:-

The 'necessary' test foreshadowed in the decision is now in force. The President noted that to a lawyer it 'remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child'. However, it is clear that the defendants do have the power since public money is at stake to refuse to fund or to fund in part only. The President stated that the remedy for practitioners was judicial review of the defendant's decision if, of course, there were grounds for believing the decision was unlawful.

In this case MFS have not sought to exceed those limits. Indeed, as the email I have already referred to makes clear, those limits mean that there is a real reluctance to engage in the work unless payment is assured.