Law Society wins legal aid case

The Law Society has won its High Court battle over the tendering process used for awarding new legal aid contracts to solicitors specialising in family law.

Two judges ruled the process "unfair, unlawful and irrational".

The Law Society, which represents more than 145,000 solicitors in England and Wales, argued the scheme used by the Legal Services Commission (LSC) was so flawed that it threatened to create "legal aid deserts" around the country.

Lord Justice Moses and Mr Justice Beatson allowed the Law Society's application for judicial review, saying the unfair tendering process could not be allowed to stand because it would prevent "the vulnerable and deprived from obtaining the services of very well qualified and experienced family lawyers".

Dinah Rose QC, appearing for the Society, spoke of the "shock" in the legal world this summer when it became clear that the tendering system was going to lead to a drastic reduction in the number of specialist firms winning publicly-funded family law contracts.

She said the 40% reduction in the number of offices carrying out family legal aid work – down from 2,470 to 1,300 – would lead to serious gaps in geographical coverage of family legal aid.

"We have referred to these as legal deserts, with no law firm available to undertake family legal aid work," Ms Rose told the judges.

"At the heart of our case is the contention that the tendering process will have serious adverse effects on access to justice for very vulnerable groups, including those who are victims of domestic abuse, those who are victims of forced marriages, or vulnerable children."

Rural areas were predominantly affected, but there were also many sizeable towns where there would be no family legal aid provision after many highly-regarded expert firms had been denied contracts, said the QC.

Lawyers for the LSC rejected the Society's case as "unarguable" and said the Commission had complied with its duty to ensure public access to justice.

But today the High Court agreed with the Society.

At the heart of the case was the "caseworker criterion" introduced by the LSC for awarding contracts.

The criterion gave most points to law firms with caseworkers who were members of two separate accreditation schemes showing they were able to undertake work with children and deal with other complex family issues, including domestic violence.

Lord Justice Moses said the LSC had "unfairly" failed to make clear in time that double accreditation was necessary in order for firms to stand the best chance of obtaining publicly-funded family law contracts.

The criteria were not set out until January 10 this year and not announced until the bids for contracts had opened, leading to "an absence of awareness" among firms that double accreditation was required – until it was too late to apply, said the judge.

Many highly-qualified firms were thus not given sufficient time to apply for the necessary accreditation.

The tendering process was "unfair and irrational" as it "inhibited and defeated" the objective of the LSC, which was to achieve a high-quality legal aid service for the public, said the judge.

Later the LSC said in a statement: "We are obviously disappointed by the result.

"We believe that our tender process would have maintained access to high-quality services for clients, in line with our obligations under procurement law."

Sir Bill Callaghan, chair of the LSC, said: "Our commitment has always been to ensure that vulnerable people across England and Wales have access to justice. Whatever we do will continue to be motivated by this imperative.

"We are currently considering the detail of the judgment and its implications, including whether to appeal. We are conscious of the uncertainty facing providers and will publish further information in due course."

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