The Law Society is bringing a judicial review against the Legal Aid Agency’s (LAA’s) decision to conduct costs assessments on higher-value court cases.
On 1 June 2020, the LAA announced
that, from 17 August 2020, it would transfer to itself from the courts the work of assessing costs on bills worth more than £2,500 (it already assesses costs up to this amount). The LAA said this decision was taken after a consultation with lawyers’ representative bodies, but in a press release
earlier this month announcing the legal action, The Law Society’s president, Simon Davis, argued that the LAA ‘did not consult on the decision to transfer the cost assessments in-house, just on which changes were needed to transfer the assessments over from the courts’.
In addition to its failure to consult representative bodies fully on the changes, The Law Society believes there are conflicts of interest around the LAA undertaking the work, as the ‘assessor is also the paying party’ and the appeals process is controlled by the agency.
The LAA claims that many legal aid providers have been going without payment due to many courts being closed because of the COVID-19 pandemic. In its June announcement, it argued that bringing the work in-house ‘will remove the need for claims to go before the courts’ and that this will lead to faster payments to providers.
According to Vicky Ling, a consultant specialising in legal aid practice and an editor of the LAG Legal Aid Handbook 2020/21
, there is a long history of the LAA and its predecessor bodies wanting to gain control of costs assessments. She believes that the difficulties caused by COVID-19 were the ‘opportunity [the LAA] had been waiting for’ and that there should have been more consultation on the details, such as the qualifications and experience of the staff who will undertake the assessments. She also argued that the appeals process around costs assessments is ‘not fit for purpose’ and should be overhauled.
In the September press release, Davis said that the proceedings had been issued ‘on a protective basis’ and invited the LAA ‘to talk to us and engage in a full and proper discussion so that we don’t have to carry on with the proceedings’.