Legal Aid Agency loses judicial review on fees in complex cases
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Marc Bloomfield
A defendant in a complex fraud case has won a judicial review on the amount of remuneration to be paid by the Legal Aid Agency (LAA) to his choice of defence counsel: R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin).
In common with many complex fraud cases, this case fell into the definition of a very high cost case (VHCC). Legal aid in VHCCs is paid on a different basis from other criminal cases before the Crown and higher courts. Since 2014, after a dispute between the government and the bar over proposed changes to the VHCC legal aid scheme, the LAA has paid defence lawyers in these cases under the interim fixed fee offer (IFFO) scheme.
The main issue in the case was the amount of remuneration offered by the LAA to pay for the review of defence documents. The case is unusual because most of the documents held by the company involved in the alleged fraud had not been required by the Serious Fraud Office. The defence team estimated that there were nearly 100m pages of evidence that needed reviewing. The LAA, after representations from the defence team, made a revised final offer of just over £1.2m in fees based on 1.3m pages of evidence.
In a letter dated 19 January 2018, the LAA refuted criticisms that had been levelled at it by counsel for the accused and argued it had no obligation to disclose the ‘calculator’ or other methodology that the Criminal Cases Unit (the specialist department at the LAA that deals with VHCCs) had used to arrive at the fee.
In their judgment, Holroyde LJ and Green J found that:
… the failure to disclose the ‘calculator’ was a breach of the LAA’s duty of transparency and clarity, that it has introduced serious procedural unfairness into the operation of the IFFO scheme in this case, and that no rational basis has been shown for the non-disclosure (para 78).
They also said that the LAA had made errors in its calculations to arrive at the fee it had offered.
Tony Edwards, a leading criminal law solicitor and author of Criminal costs: legal aid costs in the criminal courts (LAG, 2016), told Legal Action that the judgment shows that the process of fixing fees in VHCCs is open to judicial review (there is no right to appeal decisions made by the LAA in these cases). He welcomed the High Court’s decision, arguing that it confirms the ruling in the Law Society judicial review ([2018] EWHC 2094 (Admin); see page 6 of this issue): ‘This is further confirmation that the LAA must be open and transparent in its dealings with the professions,’ he said.
‘This judgment demonstrates the difficulties the LAA has in setting fair remuneration in complex cases,’ said Vicky Ling, a consultant and co-editor of the LAG Legal Aid Handbook 2018/19. She believes the LAA has been ‘overtaken by technology’ in trying to grapple with setting fees to review large amounts of evidence held digitally.

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