Hossack v Legal Services Commission

A dispute arising from a solicitor’s contractual relationship with the Legal Services Commission is not amenable to judicial review merely because the Commission’s power to contract has a statutory source. The relevant question is whether the challenged conduct has a sufficient public law element. Where the contract provides review and arbitration procedures, those procedures may constitute an adequate alternative remedy. Judicial review permission should also be refused where the public authority is simply exercising contractual powers, the alleged unlawfulness has no realistic prospect of success, or no live issue remains. A claim may be certified as totally without merit where it improperly seeks to challenge ordinary contractual administration.

The claimant was a solicitor working under a unified contract with the Legal Services Commission. The Commission requested files for independent peer review and warned that failure to provide them could lead to a rectification notice. The claimant challenged letters maintaining the deadline for production of the files and sought permission to apply for judicial review.

Permission had previously been refused by Kenneth Parker J, who considered the dispute contractual, identified the contractual review and arbitration machinery as an alternative remedy, and certified the claim as totally without merit. The claimant renewed her application. By the hearing, a rectification notice had been served and the requested files had been supplied. The central issues were whether the challenged decisions were amenable to judicial review, whether an adequate alternative remedy existed, and whether any live issue or realistic prospect of success remained.

1. Application dismissed. The renewed application for permission to apply for judicial review was refused and certified as totally without merit.
2. The statutory source of the Legal Services Commission’s power to enter into contracts did not, by itself, give the contractual dispute a public law character. The question was whether the Commission’s conduct in seeking compliance with the contractual obligations had a sufficient public element to make it susceptible to judicial review. It did not.
3. Alternatively, the contract contained machinery for resolving disputes. The claimant could seek a formal review and, where appropriate, refer the dispute to arbitration. There was no good reason why that contractual machinery was not an appropriate alternative remedy.
4. Alternatively, the Commission had simply exercised its contractual powers. Having regard to the history of the requests and the claimant’s obligations, maintaining the request for the files could not realistically be characterised as unlawful or Wednesbury unreasonable.
5. There was also no longer any live issue warranting permission. After the interim restraint was discharged, the Commission served a rectification notice and the claimant supplied the required files. Any possible future effect of that notice on a further contract was speculative.
6. The court considered whether to make a civil restraint order, having regard to the claimant’s earlier unsuccessful judicial review proceedings concerning the Commission, but reserved that question for further submissions.

1. High Court (Administrative Court): Kenneth Parker J refused permission on the papers on 2 February 2010, finding the dispute contractual, identifying the contractual dispute-resolution machinery as an alternative remedy, and certifying the claim as totally without merit.
2. High Court (Administrative Court): Mr Justice Owen dismissed the renewed application and likewise certified it as totally without merit.