London Criminal Courts Solicitors Association & Anor, R (On the Application Of) v The Lord Chancellor

Consultation must be fair in its statutory or factual context. The decision-maker must provide sufficient information to enable an intelligent response to the factors likely to be substantially important to the decision. Where undisclosed expert reports contain assumptions that are critical to the outcome, broad consultation on general factors may be insufficient. The court must decide whether the process was so unfair as to be unlawful, rather than apply a mechanistic checklist. A high degree of fairness may be required where the decision threatens livelihoods or access to justice. A procedural legitimate expectation requires a clear and unequivocal representation; an informal observation made under Chatham House rules will rarely suffice. Relief should be tailored to the unfairness. A decision directly affected by the defective consultation was quashed, but a related fee reduction was preserved where the consultation flaw could not realistically have affected it.

The claimant solicitor associations challenged the Lord Chancellor’s criminal legal aid reforms. They argued that the consultation was procedurally unfair because two expert reports, by Otterburn Legal Consulting LLP and KPMG LLP, were not disclosed for comment before the decision to make 525 Duty Provider Work contracts available.

They also alleged a procedural legitimate expectation arising from an observation that the Lord Chancellor would follow the Otterburn recommendations. The claim sought to quash the contract-number decision and the related 8.75% fee reduction implemented by the Criminal Legal Aid (Remuneration)(Amendment) Regulations 2014. The central issue was whether failure to consult on the reports and their underlying assumptions rendered the decision unlawful.

1. Consultation standard. The adequacy of consultation is fact-sensitive and depends on context. The essential requirements include consultation while proposals remain formative, sufficient reasons and information to permit an intelligent response, adequate time, and conscientious consideration of the responses. The court adopted the formulation that the process must be so unfair as to be unlawful; the phrase “clearly and radically wrong” was not a substitute for that test.
2. Application. The decision on contract numbers could profoundly affect the survival of criminal legal aid firms and access to justice. A high degree of fairness was therefore required. The consultation documents identified broad factors but did not disclose, or adequately indicate, the detailed assumptions later used by KPMG concerning firms’ retention of Own Client Work, spare capacity, growth, staff-cost reductions, new entrants and viability margins. Those assumptions were controversial and determinative of the contract range. The profession had relevant expertise, and consultees could also have addressed gaps identified by KPMG. The involvement of a small group of Law Society officials did not cure the absence of wider representative consultation.
3. The failure to permit comment on the Otterburn and KPMG reports was therefore so unfair as to amount to illegality. The legitimate expectation argument did not independently succeed. The observation that the Lord Chancellor would follow Otterburn was neither a clear freestanding promise nor a sufficient basis for such an expectation, although it formed part of the factual context relevant to fairness.
4. Relief. The decision of 27 February 2014 to make 525 Duty Provider Work contracts available was quashed. No separate mandatory order requiring consultation was necessary. The challenge to the 8.75% fee reduction failed because the consultation defect was not sufficiently connected with that decision, which was driven by an immediate financial imperative and was not itself shown to have been unfairly consulted upon.

not stated in the judgment.