By Charlie Carmichael-
The British high court has ruled as unlawful , plans of the government to cut fees paid to criminal solicitors for work on evidence.
In a key judgment against the ministry of justice, the MoJ’s consultation exercise before the proposed cut of up to 37%, Lord Justice Leggatt and Mrs Justice Carr, outrightly dismissed the plans, stating that it was “difficult to express in language of appropriate moderation why we consider these arguments without merit”.
The case was brought by the Law Society, and they prevailed mightily. The court quashed new regulations slashing payments for document-heavy Crown court cases, which the Society argued amounted to a 37% reduction in fees.
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In The Law Society, R v The Lord Chancellor, the 2017 regulations were deemed unlawful because the key analysis relied on in making the decision was not disclosed to consultees, and this deemed the consultation process unfair. The two sitting judges said the new regulations used methods that were statistically flawed, making it irrational to rely on the analysis.
Under reforms to the litigators’ graduated fee scheme (LGFS), the Ministry of Justice has capped the number of claimable pages of prosecution evidence (PPE) at 6,000 rather than 10,000.
Lord Justice Leggatt and Mrs Justice Carr DBE concluded that the calculation was ‘a flawed analysis on which no reasonable authority would have relied’.Under the proposals, solicitors would be unpaid for reading additional material above a threshold of 6,000 pages of evidence. The previous threshold was 10,000 pages
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The judgment says consultees were entitled to expect that a government department undertaking a consultation would be ‘open and transparent’, but the MoJ’s failure to disclosure statistical analysis underpinning its decision made the consultation unfair.
In their ruling, the judges said: “We have found that the [MoJ] decision implemented by the 2017 regulations was unlawful because the key analysis relied on … was not disclosed to the consultees, rendering the consultation process unfair, and used methods that were statistically flawed, making it irrational to rely on the analysis.”
John Halford, of Bindmans Solicitors, who represented the Law Society, said: “Legal aid was established and should function as a basic, non-negotiable safeguard of fair process and individual liberty in criminal cases. But rather than cherishing this vital part of the British legal system, successive ministers have undermined it with over a decade of cuts based on carelessly made decisions like this one.“Had the Law Society not stepped up to defend criminal defense solicitors, the fundamental flaws in the analysis on which this decision was based would never have come to light and their irrationality would have escaped proper scrutiny.”
The Law Society today hailed the ruling as a ‘ray of light’ for the justice system.
Society president Christina Blacklaws said the changes introduced in December meant huge amounts of work on the most complex Crown Court cases had gone unpaid. Practitioners who made relevant claims under the 2017 regulations are advised to immediately apply for redetermination.
Blacklaws added: ‘In the light of this ruling, we would urge the government to restart discussions to try to formulate a revised approach to the LGFS that will remunerate lawyers fairly for the work they have to do. We as the Law Society stand ready to help the government to this.’
Lord Justice Leggatt and Mrs Justice Carr DBE heard submissions from Blackstone Chambers’ Dinah Rose QC, instructed by John Halford at Bindmans LLP representing the Society, and One Brick Court’s Martin Chamberlain QC, representing the Lord Chancellor.
In a statement following the judgment, a spokesperson for the MoJ said: ”Defense solicitors do valuable work. The changes we made to the LGFS scheme were intended to ensure payments better reflect the work being done in legal aid-funded criminal proceedings. We will carefully consider the content of the judgment and determine next steps.’’
The ruling confirms how easily unfair decisions can determine a practice for years, if not indefinitely, if not challenged.
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