It remains to be seen whether or not the government will decide to appeal the High Court’s judgment in the Law Society’s judicial review of the revised litigators’ graduated fee scheme (LGFS) ([2018] EWHC 2094 (Admin)).1In an update on its website posted on 14 August, the LAA stated that the lord chancellor is still considering whether to appeal the judgment (‘Crime news: updated position on litigators’ graduated fee scheme’, LAA news story). In new claims under the LGFS, the LAA advises providers to submit claims for up to the 10,000 pages of evidence threshold that was in place before the rule change. It advises that claims made after 1 December 2017, when the rules (now quashed by the High Court) were changed from the 10,000-page threshold to 6,000 pages, should be resubmitted. Legal Action understands that a decision on any appeal will have to be made by the end of August unless the lord chancellor applies to the Supreme Court for an extension of time to do so. If it does, its lawyers will have to get around some pretty trenchant criticism of the Ministry of Justice’s (MoJ’s) decision-making process.

The case concerned the government’s decision to introduce a revised LGFS (set out in the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017 SI No 1019). The scheme is the means by which solicitors are paid to prepare cases for defendants in the Crown Court. A formula is used to set the fees, which includes the number of pages of prosecution evidence (PPE). The MoJ consulted on a revised formula that cut the fee for considering PPE. Part of the rationale for this was the impact of R v Napper [2014] 5 Costs LR 947 (see para 3 of the instant judgment), which widened the definition of what could be included as PPE. The lord chancellor argued that Napper had led to the inclusion of electronic evidence, which has inflated costs. Despite overwhelming opposition expressed in the consultation on the revised LGFS, it was introduced from 1 December 2017, prompting the Law Society to launch the judicial review.

The High Court found that, in the consultation process, the government had failed to refer to the £33m a year by which the Napper decision had allegedly increased legal aid expenditure or provide any analysis of how it arrived at such a figure. The MoJ’s counsel’s argument as to why it did not do this essentially amounted to: ‘Criminal legal aid lawyers are not daft. They knew we wanted to save £33m and so, as part of the consultation, they should have asked us what we had based this on.’ In rejecting this argument, the judges (Leggatt LJ and Carr J) provided two choice quotations that raised a chuckle:

Failures in the LAA’s statistical analysis of the alleged impact of Napper were at the heart of the court’s second ground for deciding that the new LGFS should be quashed. In the course of the proceedings, the LAA admitted that it had got its sums wrong and revised the £33m figure down to £31m (see para 117). This and other failings led the court to conclude that if an accurate set of statistics had been disclosed as part of the consultation, this might have resulted in the lord chancellor making a different decision.

Two other grounds – that the decision confounded a legitimate expectation (not the Law Society’s strongest argument) and that it would curtail access to justice – were rejected by the court. From a policy perspective, the latter is the most interesting. The Law Society relied on R (Unison) v Lord Chancellor [2017] UKSC 51 to argue that the new LGFS breached the common law right of access to justice.

It would seem from the judgment that the MoJ accepted that there is a constitutional right of access to justice, paid for by the state if necessary, for those accused of a crime (see para 129). Following the reasoning in Unison, the court concluded that whether the effect of the fee change infringed this right was a decision it could make after considering the relevant evidence (see para 133). It concluded, though, that the Law Society had not shown that the change to the LGFS would ‘have the systemic effect of preventing some criminal defendants from obtaining adequate legal assistance’ (para 136).

The High Court's judgment on this point begs the question what evidence is needed to prove a systemic effect on access to justice? The answer, I’d conclude, is more firms walking away from the criminal legal aid work and more miscarriages of justice. Policy-makers should intervene before it comes to this rather than leaving it to the courts to do so.