RODERICK JOHNSON Q.C. and Ors. v THE LORD CHANCELLOR

A public authority operating a policy may depart from a policy-based calculation where the policy permits adjustment and the resulting figure plainly fails to reflect the nature or value of the case. The decision-maker must adopt a rational method of assessment, but the policy need not prescribe a particular methodology. A legitimate expectation that a policy will be followed is not a free-standing ground of challenge; it depends on showing that the authority acted unlawfully or inconsistently with the policy. A challenge to an interim or in-principle approach cannot fairly complain that the authority has not yet reached a final decision.

The claimants were seven barristers instructed in a publicly funded criminal trial involving extensive digital evidence. They sought permission for judicial review of decisions taken on behalf of the Lord Chancellor by the Legal Aid Agency concerning remuneration under the Interim Fixed Fee Offer Scheme.

The challenged decisions adopted, in principle, a time-spent approach to reviewing a very large hard-drive exhibit, rather than simply using the figure produced by the Scheme calculator. The claimants alleged breach of the Scheme, legitimate expectation, irrationality and undue delay. Permission had previously been refused on the papers, and this was the renewed application.

1. Permission refused. The challenged letters made an in-principle decision about the method of valuing work on the exhibit. They did not determine the final fee.
2. The claimants could not rely on a legitimate expectation as a free-standing ground. Even assuming that the Scheme Guidance was sufficiently clear and enforceable to generate such an expectation, a challenge required conduct inconsistent with the Scheme or otherwise unlawful.
3. The calculator figures had been generated using the relevant data. The Guidance required those figures to operate as a starting point, but did not require them to determine the fee. The real issue was whether the subsequent departure was permitted.
4. The Guidance allowed the Senior Case Manager to assess whether the calculation properly represented the nature or value of the case and to adjust the figures, including figures for raw digital material. It did not prescribe how the assessment had to be carried out. The chosen method therefore had to be rational.
5. Here, the figures generated by the calculator were plainly unrealistic. They would have produced remuneration vastly exceeding the value of the fraud and, on the assumed working pattern, exceptionally high annual sums. The conclusion that the figures did not represent the nature or value of the case was rational.
6. The decision to seek evidence of time already spent and reasonably expected to be spent reviewing the exhibit was not precluded by the Guidance and was not irrational. The fact that this resembled the former approach to very high cost cases did not make it unlawful, because the Guidance permitted departure from the calculator assumptions.
7. Arguments about the precise relevance and complexity of the material, the final fee, and a proposed notional page count concerned the subsequent negotiation stage. The LAA was entitled to pause negotiations while the legal challenge was pursued. No arguable ground was established.

This was a renewed first-instance application for permission to apply for judicial review. Permission had previously been refused on the papers by Lieven J on 15 March 2022.