In a doleance (judicial review) judgment dated 12 September 2025, the Isle of Man High Court declared unlawful and quashed a criminal legal aid assessment of an advocate’s bill that had assessed the bill as zero. The zero assessment had disallowed all items that the advocate, Mr Rodgers, had sought recovery for from the legal aid fund.
The High Court determined that to assess a legal aid bill as zero after a legal aid certificate had been issued to the advocate was ultra vires (beyond the powers of the assessor) and Wednesbury unreasonable (a decision that no reasonable assessor could come to), remitting the assessment of the bill to a separate assessor.
In this article, litigation advocate Andrew Langan-Newton, who assisted the successful claimant, Mr Rodgers, considers the High Court’s quashing of the unprecedented zero assessment decision and its clarification of the remit of a legal aid assessor.
Background to the assessment
The assessment of Mr Rodgers’ criminal legal aid bill which was the subject of the doleance claim/judicial review arose in a criminal appeal. A legal aid certificate was awarded to Mr Rodgers by Judge of Appeal Cross KC (one of the judges who ultimately heard the appeal), to bring the appeal against an exclusion order excluding the criminal defendant from the Isle of Man.
Mr Rodgers had not represented the criminal defendant in the first instance prosecution where the exclusion order was imposed.
Upon the criminal appeal and a further appeal to the Judicial Committee of the Privy Council being dismissed, Mr Rodgers submitted his legal aid bill to the assessor in the amount of £4,821 and disbursements of £903.20.
The Zero Assessment
Upon assessment, the assessor, Mr Kennish, decided that although a legal aid certificate was granted by the Judge of Appeal (affording Mr Rodgers recovery from the legal aid fund), the Judge of Appeal could not have considered the merits of the appeal at that point. On that ground, the assessor took the view, as the appeal had been unsuccessful, that it was not a reasonable use of public funds and that a zero assessment should be given.
Mr Rodgers challenged the legitimacy of the zero assessment and the decision was reviewed by Mr Armstrong, a lawyer at the General Registry. Mr Armstrong determined that the advice of Mr Rodgers to bring the appeal (for his client) “was without merit and arguably therefore [the appeal] should not have bee [sic] brought” and that the appeal did not involve a substantial question of law. Mr Armstrong concluded that the assessment of Mr Rodgers’ bill should remain as zero.
The challenge to the zero assessment
Mr Rodgers brought a doleance claim judicially reviewing the zero assessment, arguing that the Judge of Appeal had granted the legal aid certificate in the interests of justice and there had been no subsequent revocation of it. Accordingly, the decision to assess the bill as zero was in excess of the powers of the assessor and/or an irrational decision by the assessor.
Mr Rodgers argued that the zero assessment was akin to the assessor unlawfully revoking the legal aid certificate that the Judge of Appeal had granted.
In determining the judicial review in Mr Rodgers’ favour, Deemster Needham decided that that assessment had overstepped the legal bounds granted to the assessor, unlawfully awarding the zero assessment, in the terms of a “complete and blanket reduction”.
Upon considering case law from the Courts of England & Wales, Deemster Needham identified the duties of a legal aid assessor under Isle of Man law as:
- To “carry out the audit exercise in relation to individual items on the bill”; and
- To “carry out a sensible review of the aggregation process in the light of the overall complexities of the case, and above all using the experience of the taxing officer.”
Upon setting out the duties and function of the assessor, Deemster Needham determined that upon receipt of a legal aid certificate, an advocate had a prima facie entitlement to be paid out of the legal aid fund. The assessor’s discretion in assessing a bill is limited to an assessment specific to the bill of costs and fair remuneration within that context. It was not for the assessor, with hindsight, to revisit the decision of the Judge of Appeal’s granting of the legal aid certificate (as had effectively taken place).
Upon that consideration, Deemster Needham characterised the zero assessment in Mr Rodgers’ case as “new and unprecedented” and “not legally sound”.
The Deemster noted how a zero-assessment-system could be equated with a no-win-no-fee style of system, where legal aid funding would only be allowed for successful appellants.
Accordingly, the Deemster considered that whilst the proper assessment of legal aid bills plays an important role in the protection of public funds, allowing the zero assessment to stand risked deterring advocates from accepting criminal legal aid work. That would have an impact on the entire system of criminal legal aid work.
The Deemster quashed the unlawful zero assessment decision and referred the matter to a separate assessor to reconsider.
If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton.