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Legal Aid Contracting Challenge
Feb 2000

From the Law Society.

On 16th February 2000 the court dismissed MacKintosh Duncan's application for judicial review of the Legal Aid Board Exclusive Contracting regime.

The court dismissed the Lord Chancellor's application for costs and only awarded tile Legal Aid Board 40% of their costs. Leave to appeal was refused. Any appeal must go to the Court of Appeal and should be heard by the Master of the Rolls. The Law Society will be giving close consideration to the judgement and will consider any request from Mackintosh Duncan to support an appeal.

The following is part of an article by Nicola Mackintosh, which will appear in the March edition of Legal Action.

Summary of the Main Issues

The Applicants argued that the new exclusive contracting regime for legal advice and assistance (and ABWOR for mental health clients) was unlawful in various respects, and raised serious issues as to the nature of

  1. The common law fundamental fight of unimpeded access to a court
  2. The fight to public funding for legal advice and representation in many cases (as established in domestic and ECHR case law)
  3. The common law fight to select one's legal representative. from among those willing to act at legal aid rates

It was argued that the contracting regime breached fundamental fights without express statutory provision to the contrary, as evidenced by the detail of the scheme. Under the scheme, clients were required to surmount various hurdles in their search for a contracted supplier with sufficient case starts and capacity within the Schedule Payment Limit. Such extra restrictions amounted to an unlawful irnpediment to access to the courts, particularly for vulnerable clients.

The caselaw also confirmed that a client had a fight to select the practitioner of his/her own choice from among those willing to act at legal aid rates as part and parcel of the fight to equality of arms. The fight to public funding in some civil cases had been established by domestic and ECHR caselaw - for example, fight to legal representation before a Mental Health Review Tribunal. Such fights could only be abrogated by express statutory wording, or by 'necessary implication' based on a self evident and pressing need. No such test was met in this case, submitted the Applicants.

It was also argued that the priorities given to areas of work did not mirror the policy objectives in the White Paper 'Modernising Justice', ignored relevant factors and did not differentiate between the detained psychiatric patient on the one hand and a dispute as to personal possessions on the other, by way of example.

Held. in dismissing the application:

The Court held that the case was not concerned with fundamental fights of access to the court, the right to publicly funded legal advice/representation, or the right to select the legal representative of a client's choice. The logic of the court's position is that a person without means has few, if any enforceable rights (as opposed to wealthy clients), that there was no right to public funding for legal advice/representation or a right to choose a legal representative from among those willing to act at legal aid rates. This was so even for patients detained under the Mental Health Act 1983.

However, there were 'very serious difficulties' and 'significant weallnesses' in the scheme, which required urgent remedial action by the Board. These irnpediments which the. court held had become apparent since the implementation of the scheme in January would, if not properly addressed by the Board result in 'very real hardship' continuing to be suffered, which would be 'adverse to the public interest'. In particular, the Court heavily criticised the fact that the Board had failed to provide a clear set of principJes by which it would exercise its discretion to increase matter starts before its final review leading to July 2000, until it produced its fully referenced note from counsel on the last day of the hearing. It stated that it expressed to Counsel for the Board 'certain anxieties about the apparently arbitrary and secretive way in which the Board appeared to be disposed to exercise in future the very wide discretions it had reserved to itself under the scheme'.

In addition, the Court made it clear beyond doubt that the new restrictions on travel to clients in need of advice, particularly in the field of mental health and cornmunity care should be revised and urged the Board to consider affording the same freedom to travel to such clients as exists for clinical negligence solicitors. Mental health, cornmunity care and other niche areas of work required further urgent action by the Board.

The court found that Mackintosh Duncan had performed a public service in raising these important issues before the Courts.

Summary/Comment

There is no doubt that this case raises issues of the most fundamental importance for the rights of those without means to access the courts. That the regime has been introduced by this Government only a few months before the Human Rights Act 1998 is implemented will not go unnoticed. Indeed, the Court made it clear that if the. serious problems in the scheme were not rectified as a matter of urgency, a court hearing a similar case in the autumn might not be 'so charitable', given the court's findings that access had been impeded.

The inescapable logic of the judgement is that the Court agreed with the Government's surprising argument that only the wealthy have rights to unimpeded access to the courts and the right to select their legal representative. The poor have no fights to public support in accessing the courts and enforcing their rights This does not sit easily with the Government's policy in 'Modernising Justice', in which the Lord Chancellor stated:

'It is not enough for people to have rights: they must be able to enforce those rights if need be The justice system should serve everyone, regardless of their means.'

Vulnerable clients are already encountering severe problems in accessing legal advice/representation. The Court's view was that any issues of access to justice lie in the future. They do not.

A copy of the judgement is available at here and is essential reading for all practitioners.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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