High Court judge says legal aid tender was a “dreadful decision”

26 August 2010 by Adam Wagner

Updated 27 Aug  (17:15)  | A High Court judge has branded the Legal Service Commission’s recent and highly controversial tender for legal aid work as a “dreadful” and potentially irrational decision.

The comments of Mr Justice Collins came in a permission hearing (i.e., only the first stage of a two-part process) on the application by the Community Law Partnership to judicially review the LSC’s recent tender, and specifically the rejection of CLP’s own application. It appears from a Law Society Gazette article that the hearing was adjourned, with the judge warning the LSC to consider its position carefully, and that if it fights and loses the decision could set a dangerous precedent. The hearing is to resume in around a week and a half.

The number of firms who can offer legal aid work is set to be reduced from 2,400 to 1,300 as a result of the LSC’s recent tender. This has been highly controversial, with many – including the Law Society – arguing that the tender was not carried out properly and will unduly restrict access to justice. The Law Society have threatened legal action, but may have been pipped to the post.

According to the Nearly Legal Blog, the judge put his provisional view in no uncertain terms, saying “I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational… Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.” The judge also said

There is ample evidence that this is a highly reputable and utterly efficient firm that is approved of by the judges, and you’re going to ruin it. You’re bringing it to an end as a result of this decision. How can you justify that? You can’t.

Strong words indeed.

Update 27/08/10 – Nearly Legal has now posted more background on the case, albeit without access to a written decision or the parties themselves. It would appear that permission was in fact granted for the substantive Judicial Review hearing to go ahead, and this will take place in around 10 days. The aspect of the tender which Mr Justice Collins found to be potentially irrational was the positive scoring given to a firm for having taken cases to higher appeal courts. This meant, as the judge pointed out, that a firm would be in fact penalised for winning or settling all of its cases before they could be appealed, which on the face of it is punishing a firm for success.

Update 2 | 27/08/10, 17:15 – Nearly Legal have corrected their earlier post to clarify that in fact permission was not given for Judicial Review; rather, the hearing was adjourned, as originally stated in the Law Gazette article. On the face of it, this appears to make little difference given the very strong comments of Mr Justice Collins. Meanwhile, the Law Society have said that they have launched their own judicial review proceedings in relation to the tender as a whole. Will Mr Justice Collins be hearing that application too? If so, this may be bad news for the LSC…

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