MK Law Solicitors Ltd, R (On the Application Of) v The Lord Chancellor (Rev 1)

Where a public authority creates a discretionary route for successful tenderers to join additional duty schemes, the eligibility criteria must be read as a whole and in light of their purpose. A capitalised contractual term such as “Office” carries its defined contractual meaning. Registration alone is insufficient where the contract also requires suitability, accessibility, service standards and client confidentiality. “Employed” ordinarily refers to employment agreed by the relevant date; it does not necessarily require staff to have started work where the contracted service has not begun. A decision-maker acts unlawfully by adding irrational requirements, such as requiring an office to be open for walk-in trade when the contract imposes no such requirement and the service cannot yet be delivered.

The claimant, a criminal legal aid solicitors’ firm, challenged the Lord Chancellor’s refusal to allow it to join additional duty solicitor schemes from its Hackney office. The refusal followed the abandonment of a dual-contract tender process and a discretionary letter inviting successful bidders to apply where they had opened and staffed offices forming part of their successful bids.

The defendant concluded that the office was ineligible because it had been registered since 2012, was not operational in the required sense by 8 February 2016, and had no staff then working there. The claimant alleged misinterpretation and misapplication of the criteria, irrationality, and unequal treatment. The central questions were the meaning of the letter and whether it had been lawfully applied.

1. Claim succeeded; decision quashed. The court quashed the decision of 11 March 2016 and required the defendant to remake the decision lawfully. The court declined to make the mandatory order sought because it lacked sufficient information about the rota system.
2. The letter of 8 February 2016 had to be read as a whole. Its opening reference to firms that had opened offices and employed staff after notification of successful tenders formed part of the context and criteria. The scheme addressed expenditure incurred in reliance on the tender award, rather than expenditure incurred before the award.
3. “Office” was capitalised because it had the meaning given by the 2010 Standard Crime Contract. That required more than SRA registration. The premises had to be suitable for clients and employees, comply with health and safety and contractual quality requirements, and protect client confidentiality. The Hackney premises became capable of satisfying that definition after refurbishment and associated works.
4. The requirement to have “employed supervisors and staff” meant that employment had to have been agreed by the relevant date. It did not require new staff to be physically working at the office before the duty work contract commenced. Requiring staff to be present in anticipation of a service which could not yet begin would be irrational.
5. The defendant unlawfully added a walk-in-trade requirement. The contractual requirement was physical accessibility and arrangements for telephone contact, appointments and emergencies. The claimant’s office met that requirement. Imposing a requirement for the office to be manned for walk-in trade was irrational and inconsistent with the contract.
6. The unequal-treatment ground was unnecessary to the result. New entrants and existing contract holders expanding into new areas were not in comparable positions. However, the defendant’s application of the office criteria created potential unfairness by treating the claimant’s premises as disqualified merely because some capital expenditure had occurred in 2012.

First-instance judicial review in the Administrative Court. Permission to proceed and expedition were granted by Wyn Williams J on 15 April 2016. The court quashed the decision under challenge and required a lawful reconsideration.