Common issues on review
When is an application ‘made’? (Section 12(1) and 24(1) of the Legal Services Act 2000)
Can the Legal Services Agency accept late applications?
What does ‘prospects of success’ mean? (Section 9(d)(i) of the Legal Services Act 2000)
When can aid be refused for civil appeals? (Section 9(4)(e) of the Legal Services Act 2000)
Notice of an intention to withdraw aid
The status of the Agency’s policies
Introduction
This section sets out basic principles, and refers to leading decisions of the Legal Aid Review Panel and the courts, in respect of some common issues that the Panel deals with.
The information in this section is a guide only and is not intended to be legal advice. Applicants for aid and aided persons should consult their own lawyer for legal advice, or a community law centre or a citizens advice bureau.
It is also important to remember that each case depends on its particular facts.
You can see the full text of a Panel decision by clicking on the links.
What do 'manifestly unreasonable' and 'wrong in law' mean? (Section 54(1) and (3) of the Legal Services Act 2000)
When the Legal Aid Review Panel reviews a decision the Legal Services Agency has made, it must determine whether the decision is manifestly unreasonable or wrong in law.
No single, comprehensive definition of these terms exists. However, in Legal Services Agency v Fainu [2002] 17 PRNZ 433, the High Court stated that a decision is manifestly unreasonable if it is shown “clearly and unmistakably” that the Agency’s decision “went beyond what was reasonable or was irrational or logically flawed”.
In the same case, the High Court stated that a decision might be wrong in law if it derives from an inaccurate application or interpretation of a statute, or is wrong in principle, or if a decision-maker has failed to take into account some relevant matter or takes into account some irrelevant matter, or if the decision depends on findings that are unsupported by the evidence.
When is an application ‘made’? (Section 12(1) and 24(1) of the Legal Services Act 2000)
The precise time that an application for aid, or an application to amend a grant of aid, is made can be critical.
An application for aid is ‘made’ when the Legal Services Agency receives it: see McCready v Legal Services Agency (High Court, Wellington, AP 87/02, 2 October 2002, Wild J). An application for aid is not made when it is posted.
Can the Legal Services Agency accept late applications?
Except in limited circumstances, an application for legal aid or an application to amend a grant of legal aid must be made before the matter to which it relates is finally disposed of. The Legal Services Agency may accept an application that is made up to 15 working days late if it is satisfied that:
• the application was delayed because of circumstances beyond the control of the applicant or the applicant’s lawyer and it was not reasonable to have anticipated those circumstances; and
• the applicant and the applicant’s lawyer took all reasonable steps to apply before the final disposition of the matter to which the application relates.
The statutory time limits that apply to applications for aid or to amend a grant of aid are strict: if an application is made more than 15 working days after final disposition of the matter to which the application relates, the Agency has no discretion to accept it. See Mansell v Legal Services Agency [2005] NZFLR 551 (CA) and LARP 205/07 (17 May 2007).
What does ‘prospects of success’ mean? (Section 9(d)(i) of the Legal Services Act 2000)
The Legal Services Agency may decline to grant aid for a civil matter if the applicant’s prospects of success are not sufficient to justify the grant of aid. In Timmins v Legal Aid Review Panel [2004] 1 NZLR 708, the High Court considered the meaning of prospects of success and stated:
"'Prospects of success’ … refers to the prospects of achieving a successful outcome." Those prospects need to be assessed in a pragmatic way and, somewhat obviously, in the circumstances of the particular case. After all, no two cases are the same. The assessment invited by the words in section 9(4)(d)(i), ‘sufficient to justify the grant of aid’, involves weighing the likely benefits against the likely costs. While the benefit in some cases will be measurable mainly in dollar terms, in other situations that will not be so. Examples might include obtaining an injunction restraining the destruction of an area of native bush, or the closing of a road or access track or some other facility, or a judgment upholding the reputation of a person or a product (even if unaccompanied by significant damages), or vindicating some important point of principle.
The High Court made it clear that an assessment of prospects of success may involve assessing non-monetary benefits. It said that the relevant question to ask is:
"What, if any, legal action would the applicant (assuming they were a reasonable individual) take in the circumstances if paying their own legal costs?"
A similar question applies if the applicant for aid is the respondent in civil proceedings:
"The concept of achieving a successful outcome remains intact. … What, if any, legal action would the applicant (as a reasonable individual) take in the circumstances if paying the costs of their own defence? But, as opposed to maximising the benefits or ‘takeout’, the issue becomes one of minimising the damage or loss. In colloquial language, the question becomes: How best can I get out of this? The psychological benefits of resolving the claim (for example, an end to the stress, worry and distraction of being sued), and resolving it sooner rather than later, need to be factored in."
When can aid be refused for civil appeals? (Section 9(4)(e) of the Legal Services Act 2000)
The Legal Services Agency may refuse aid, or further aid, for an appeal in a civil matter if for any reason it considers that aid or further aid is not justified. The Agency’s discretion to refuse aid for civil appeals is therefore very broad. Even if good grounds exist for an appeal, there may be other reasons that could justify the Agency’s decision not to approve aid for the appeal. For example, the Agency may be entitled to decide that, while an appeal has good prospects of success, it would be of no substantive benefit to the applicant. See Legal Services Agency v MA (2008) 19 PRNZ 1.
However, the Agency may not make a decision to refuse aid for a civil appeal if that decision is manifestly unreasonable or wrong in law.
Notice of an intention to withdraw aid
When the Agency merely gives notice of an intention to withdraw aid then that is no more than an invitation to the aided person to make submissions in reply to the notice. It is not a decision that the Legal Aid Review Panel may review: see LARP 558/02 (7 October 2002). In this circumstance, a reviewable decision arises only when the Agency decides to withdraw aid.
The same applies where the Agency gives notice of an intention to amend a grant of aid without the aided person’s consent and the amendment is likely to affect the aided person detrimentally.
The status of the Agency’s policies
In administering the legal aid scheme, the Legal Services Agency has developed a range of policies and guidelines. Although the policies and guidelines have no statutory basis under the Legal Services Act 2000, the High Court has confirmed the Agency’s right to make or adopt them, provided they are consistent with the Legal Services Act 2000 and leave sufficient room for the proper exercise of discretion in individual cases. That means the Agency has a duty to listen to and consider claims that a particular case has such individual characteristics that the Agency should not follow its policy or guidelines. See Legal Services Agency v Minchington [2003] 1 NZLR 263 and Legal Services Agency v Fainu [2002] 17 PRNZ 433.
To see the Agency’s current policies and guidelines, click here.