Authorised litigators and the 2018 civil contract
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Marc Bloomfield
The 2018 contract contains a number of references to and requirements for authorised litigators. Here’s what you need to know about them.
The Legal Aid Agency (LAA) has set a range of different requirements for authorised litigators under the 2018 civil contract, which can be confusing – sometimes even to LAA staff themselves! This will be an important issue during the verification period for some practitioners, mainly in the not-for-profit sector, in the run-up to the new civil contracts, which start on 1 September 2018.
What is an authorised litigator?
An authorised litigator is someone who can conduct litigation under the Legal Services Act 2007 (see s18(1)). All solicitors are authorised to conduct litigation, but every practice must have a solicitor who has been qualified for 36 months and is qualified to supervise. So, for example, if you are a small not-for-profit organisation with just one solicitor, that person has to qualify as a supervisor under the Solicitors Regulation Authority's (SRA’s) rules (SRA Handbook Practice Framework Rules 2011 rr12.1(c) and 12.2). Barristers and chartered legal executives can also apply for authorisation to conduct litigation granted by their regulators, the Bar Standards Board and CILEx Regulation.
What is the difference between a legal aid supervisor and an authorised litigator?
In some categories, you can meet the LAA’s supervisor requirements without being able to conduct litigation, but in order to provide the full range of services potentially needed by a client, you may need to be able to litigate.
In some categories, you can meet the LAA’s supervisor requirements without being able to conduct litigation, but in order to provide the full range of services potentially needed by a client, you may need to be able to litigate. So, in order to ensure litigation is available and to differentiate between smaller and larger lot sizes, the LAA specifies authorised litigators in some categories. You can employ an authorised litigator who is a different person from your category supervisor, but they can be the same person. This was confirmed by the LAA in the replies to ‘frequently asked questions’ Q.7.6 (Procurement process for face to face contracts from September 2018 frequently asked questions).
Where do we find the requirements?
The overarching requirements are to be found in the 2018 Standard Civil Contract Specification at para 2.8:
At all times you must comply with the requirements specified in the applicable category specific rules regarding the employment of and/or access to an authorised litigator. Unless specified otherwise such person must work on at least a part time equivalent basis and you must be able to demonstrate their experience of undertaking cases within the category of work you are authorised to provide. For the purposes of this paragraph 2.8 ‘part time equivalent’ means the equivalent of one individual working 17.5 hours each week during business hours (excluding breaks). Such person (or each such persons) must be either a sole principal, one of your employees or a director of or partner in or member of your organisation (where you are a company, partnership (other than an LLP) or LLP respectively) and must at all times during their working hours (except as required for the proper performance of their role, such as attending court and/or clients, work from one of or any combination of your offices.
However, these may be varied in the category of law specific rules.
Housing and debt
If applying at Lot 2 and above in housing/debt, you will need to employ a part-time equivalent (PTE) authorised litigator with experience in housing/debt law. This means one or more people working the equivalent of 17½ hours a week (per 2018 Standard Civil Contract Specification para 2.8 above).
Claims against public authorities and community care
All organisations delivering claims against public authorities and community care work must employ a PTE (17½ hours a week) authorised litigator with relevant experience (per 2018 Standard Civil Contract Specification para 2.8 above).
Mental health
All organisations will need to employ an authorised litigator with experience of mental health cases, who will be available in each procurement area where you deliver services, but the amount of time they have to be available is not specified (2018 Standard Civil Contract Category Specific Rules: Mental Health para 9.6(a)).
Welfare benefits
In welfare benefits you have to have access to an authorised litigator, again the amount of time they have to be available is not specified (2018 Standard Civil Contract Category Specific Rules: Welfare Benefits para 12.29).
Immigration and asylum
The specification does not say explicitly that you must employ an authorised litigator, but for Lot 2 and above you have to be able and willing to undertake the full range of licensed work (see Procurement of civil legal aid services in England and Wales from 1 September 2018 face to face invitation to tender: information for applicants para 2.44) and so it is implied.

About the author(s)

Description: Vicky Ling - author
Vicky Ling is a consultant specialising in legal aid practice and a founder member of the Law Consultancy Network.