Ames, R (On the Application Of) v The Lord Chancellor

A public authority’s decision on remuneration for publicly funded criminal defence advocates may be amenable to judicial review where it is a necessary core element of providing legal aid. Amenability depends on the nature, context and consequences of the decision and the grounds of challenge. A contractual setting does not by itself exclude public law review.

Where a funding scheme uses a calculation model, the authority must act rationally and with procedural fairness. It must correct material errors and provide sufficient transparency and clarity about the operation of the model. A failure to disclose the relevant calculator or guidance may render the decision unlawful.

The claimant faced a long and complex fraud trial and had public funding under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. His chosen counsel could not agree fees with the Legal Aid Agency under the Interim Fixed Fee Offer scheme.

The claimant sought judicial review of the Agency’s final offer, alleging irrationality, procedural unfairness, lack of transparency and infringement of Article 6. The court also considered applications to amend the claim, adduce evidence and extend time.

1. The court granted permission to amend, adduce further evidence and extend time. The breaches of case-management directions caused no real prejudice because the proposed material largely elaborated matters already known to the Legal Aid Agency.
2. All aspects of the Agency’s fee decision were amenable to judicial review. There is no universal test. The court must consider the decision’s nature, context and consequences, together with the grounds of challenge. A decision by a public authority under a contract may still have a sufficient public law element where it is necessarily involved in performing a public function rather than merely incidental to it.
3. The fee decision was a core element of the Lord Chancellor’s statutory duty to make legal aid available. It concerned public funding for the defence of a person prosecuted by the state and was capable, if unlawfully made, of affecting the fairness of the criminal trial.
4. The Agency had made material errors in assessing the documentary material, including treating the disclosed Excel spreadsheets as 40,000 pages when the evidence identified at least 80,000 pages. It failed to correct those errors or provide a satisfactory explanation. An assessment which does not correct demonstrated material errors cannot provide sufficient and reasonable funds.
5. The Agency’s refusal to disclose the IFFO “calculator” and any relevant policy, guidance or protocol breached its duty of transparency and clarity and introduced serious procedural unfairness. The absence of disclosure prevented meaningful scrutiny of how the fee was calculated.
6. The Article 6 illegality ground was not established. Article 6 does not confer an unqualified right to choose particular advocates, and there was no evidence that no competent advocate would accept the offered fees.
7. The decision of 12 December 2017 was irrational and was set aside. The Agency was directed to remake the decision, taking account of the identified errors, and to disclose the calculator and any relevant policy, guidance or protocol.