Point of Principle Regarding Emergency Certificates
We have become aware of a new Point of Principle that has been made regarding the scope of emergency legal aid certificates. Often an emergency certificate will be limited to a specific hearing and the Legal Aid Agency (LAA) has been disallowing any work done beyond that hearing until the issue of the substantive legal aid certificate. It has been relying upon the content of the Funding Code Decision Making Guidance. However a Point of Principle has now been made ruling that the position must be as stated in 12.2 of the Public Funding Code Procedures:
“Where an emergency certificate has been issued to a client and a substantive certificate is subsequently issued to that client for the same proceedings while the emergency certificate is in force, the emergency certificate shall merge with the substantive certificate and the substantive certificate shall take effect from the date upon which the emergency certificate was granted”
The LAA has confirmed to us that, in view of the point of principle, as long as the substantive certificate was granted before the expiry of the emergency certificate then the limitation on the substantive certificate applies retrospectively from the date of the emergency certificate. If the specific limitation on the emergency has not been included on the substantive certificate it therefore can no longer be applied and work done after the hearing is retrospectively covered. If however no substantive certificate was issued, or it was issued after the expiry of the 8 weeks, then the limitation on the emergency certificate stands and no further work can be claimed for the period covered by the emergency certificate.
Additionally the LAA has indicated that this Point of Principle will not apply under LASPO cases because the Funding Code Procedures no longer apply for those cases and there is no equivalent rule within the new regulations.
The Point of Principle has not yet been published and therefore in the meantime should this situation arise, please quote Section 12.2 of the Public Funding Code Procedures.