Clive Rees Associates, Solicitors, R (on the application of) v Swansea Magistrates Court & Anor [2011] EWHC 3155 (Admin)

[2011] EWHC 3155 (Admin)Case No CO/10279/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT CARDIFF
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 November 2011
Before
THE HONOURABLE MR JUSTICE BEATSONTHE HONOURABLE MR JUSTICE LLOYD JONES
Between
The Queen on the application ofClaimantClive Rees Associates, SolicitorsClaimantSwansea Magistrates’ CourtDefendantRees Davies and Partners, SolicitorsInterested Party
Mr. Cain Ormondroyd (instructed by Clive Rees Associates, Solicitors) for Claimant for The Defendant and the Interested Party did not appear and were not represented.Hearing Hearing date: 17 th November 2011
Judgment

The Hon. Mr. Justice Lloyd Jones :

[1]By this application the Claimant, Clive Rees Associates, a firm of solicitors in Swansea, seeks to challenge the decisions of the Swansea Magistrates’ Court made on 3rd October 2011 to transfer representation orders made in respect of three of their clients to another firm of solicitors, Rees Davies and Partners.[2]Ms. Anne Griffiths, an associate solicitor with the Claimant firm, gives the following account of the events which led to this application. On 1st August 2011 Ms. Griffiths was acting as duty solicitor at Swansea Magistrates’ Court when she was retained by Gareth Mansell, aged 17, in respect of a charge of assault occasioning actual bodily harm. Mr. Mansell’s father was also in attendance. Mr. Mansell gave instructions that he relied on self defence and as a result a plea of not guilty was entered at court and the matter was set down for trial at Swansea Youth Court on 26th October 2011. On 10th September 2011 Mr. Clive Rees of the Claimant firm, as the court duty solicitor, acted on behalf of Mr. Mansell in relation to a further charge of causing criminal damage. A plea of guilty was entered in relation to that offence. On 14th September 2011 Mr. Mansell’s father informed Ms. Griffiths that his son had been seen by the community psychiatric nurse, when detained on 9th September 2011. Ms. Griffiths made enquiries and established that Mr. Mansell had been referred to the community mental health team. At the next court hearing on 16th September 2011 Ms. Griffiths took instructions from Mr. Mansell, with his father present. Mr. Mansell confirmed that he had been hearing voices at the time of the assault and the criminal damage. Ms. Griffiths took the view that it was in the best interests of Mr. Mansell to raise the matter with the magistrates. They ordered the preparation of a psychiatric report in order to determine whether Mr. Mansell was fit to plead. Ms. Griffiths made an appointment for a consultation with a consultant psychiatrist on 16th September 2011. Mr. Mansell did not attend and was taken into custody on a new matter on that day. On 23rd September 2011 the Claimant firm received a letter from Rees Davies and Partners enclosing a manuscript note signed by Mr. Mansell requesting that any representation order and papers with respect to outstanding cases be transferred to Messrs. Rees Davies and Partners. The note said that he had lost confidence in Clive Rees and Associates. Ms. Griffiths sought to make contact with Mr. Mansell to verify his instructions. Mr. Mansell telephoned her on 28th September 2011 at 10.00 p.m. and provided instructions that he wanted Clive Rees Associates to continue to act for him. He confirmed that Rees Davies and Partners were dealing with other matters on his behalf. On 3rd October 2011 Swansea Magistrates’ Court heard an application for the transfer of the representation order to Rees Davies and Partners and ordered that the representation order be transferred to them.[3]Ms. Griffiths further states that she was acting as duty solicitor out of hours on Saturday 24th September 2011 when she was retained by Mr. Colin Latham and Mr. David Gallagher in relation to allegations of trafficking Class A drugs. She appeared for Mr. Latham and Mr. Gallagher at their bail applications on 26th September 2011. Bail was refused. On 29th September 2011 Ms. Griffiths visited them at HMP Swansea to take further instructions. Mr. Gallagher instructed her that he wanted to retain Clive Rees Associates. Mr. Latham accepted correspondence from her. However he said that he was seeking alternative representation from solicitors in Liverpool and more locally. On 30th September 2011 the Claimant firm received from Rees Davies and Partners a letter dated 29th September 2011 stating that they had been approached by David Gallagher and Colin Latham who had asked if Rees Davies and Partners would represent them at Swansea Magistrates’ Court on 3rd October 2011. The letter enclosed typewritten letters signed by Mr. Latham and Mr. Gallagher respectively, in identical terms stating that they had lost confidence in Clive Rees Associates and wished to transfer instructions to Rees Davies and Partners. At the hearing at Swansea Magistrates’ Court on 3rd October 2011 Mr. John of Rees Davies and Partners applied for the representation orders to be transferred to Rees Davies and Partners. The Magistrates ordered the transfer of the representation orders.[4]On 14th October 2011 the Claimant sent to Mr. James Hehir, Clerk to the Justices at Swansea Magistrates’ Court, a letter before claim in accordance with the judicial review pre-action protocol. It indicated that it wished to challenge the decision of the Magistrates to transfer the representation orders of Mr. Mansell and, separately, Mr. Latham and Mr. Gallagher. The letter set out the grounds of claim as they then stood and details of the order it would seek from the court.[5]On 18th October 2011 Mr. Hehir sent an email to the Claimant and to Rees Davies and Partners in the following terms:
“I have today received an application for judicial review following the decision by magistrates to transfer representation orders between your firms. The Criminal Defence Solicitors (General) (No.2) Regulations 2001, Regulation 16 requires a good cause for the transfer. Having seen the case papers today my view is that the magistrates’ decision is vitiated because the court did not consider the above Regulations which are binding on all parties. Accordingly I have directed that representatives of each firm attend at my Swansea office on Thursday 20th October at 9.00am when I will consider this application afresh. In this way I can ensure that the parties have a proper opportunity to make representations in accordance with the Regulations without the need for litigation.”
[6]On 20th October 2011 Ms. Griffiths on behalf of the Claimant and Mr. Stuart John on behalf of Rees Davies and Partners duly attended before Mr Hehir. Mr Hehir heard submissions and purported to confirm the magistrates’ decisions.[7]Later that day Mr. Hehir sent an email to Ms. Griffiths asking whether, “following our very helpful discussion this morning”, he could “take the view that the proposed judicial review is now being withdrawn and that I need take no further action with regard to this matter”. However, Ms. Griffiths stated in reply that she believed the situation had now been made worse and that the Claimant proposed to seek a judicial review in the High Court.[8]The claim form was issued on 25th October 2011. On 26th October 2011 Lindblom J. granted permission to apply for judicial review, ordered that Rees Davies and Partners file an Acknowledgement of Service by 4.00pm on 27th October 2011 and that the substantive hearing should take place on the first available date after 27th October 2011. The application was heard before a Divisional Court sitting in Cardiff on 17th November 2011.[9]The submissions of Mr. Cain Ormondroyd who appeared on behalf of the Claimant may be summarised as follows(1) The decisions of the magistrates made on 3rd October 2011 in respect of the representation orders of Mr. Mansell and Mr. Latham and Mr. Gallagher, respectively, should be quashed on the grounds that (a) The magistrates’ erred in law; (b) No adequate reasons were given for each application to transfer the representation order and as a result the proceedings were procedurally unfair; (c) The decisions were, in each case, Wednesbury unreasonable.(2) The Clerk to the Magistrates had no jurisdiction to make or confirm an order transferring legal representation under the 2001 Regulations.(3) In any event (a) The Clerk to the Magistrates erred in law; (b) The hearing on 20th October 2011 was unfair to the Claimant because the grounds for seeking the transfer were not explained; (c) The decisions reached were Wednesbury unreasonable.[10]On 26th October 2011 the Magistrates’ Court lodged an Acknowledgement of Service. It enclosed a note prepared by Mr. Hehir.(1) The note explained that the Defendant Magistrates’ Court did not intend to support or contest the claim but wished to place representations before the court.(2) Mr. Hehir explained that following receipt of the pre-action protocol letter he considered the legal aid papers and the correspondence that the court would have considered on 3rd October 2011 when the magistrates made their decisions to transfer the representation orders. He formed the view that the magistrates’ decisions taken on 3rd October 2011 were vitiated because the court did not fully consider the Criminal Defence Solicitors (General) (No.2) Regulations 2001, Regulation 16 in that the reasons for the request were not fully set out in writing but in each case attached a handwritten, simple form of authority.(3) He gave an account of the hearing before him on 20th October 2011 and explained the reasons why he had come to the conclusion that, in each case, the transfer of the representation order should be confirmed.(4) However, he also stated:
“On reflection, I ought to have placed the matter back before the court as the decision to transfer is one for the magistrates and accept that I was mistaken in not doing so. However I was acting in good faith and wished to avoid any further embarrassment to either firm in these proceedings.”
[11]On 27th October 2011 Rees Davies and Partners lodged an Acknowledgement of Service in which they stated that they did not intend to contest the claim.[12]In the result, therefore, the only party represented at the hearing before us was the Claimant. We are very grateful to Mr. Ormondroyd for his clear and helpful submissions.

The applicable law

[13]Regulation 16, Criminal Defence Service (General)(No.2) Regulations 2001 / 1437 provides in relevant part:
“(1) Where a representation order has been granted an application may be made to the court before which the proceedings are heard to select a representative in place of a representative previously selected, and any such application shall state the grounds on which it is made. (2) The court may: (a) grant the application where: (i) the litigator considers himself to be under a duty to withdraw from the case in accordance with his professional rules of conduct and, in such a case, the litigator shall provide details of the nature of such duty; (ii) there is a breakdown in the relationship between the assisted person and the litigator such that effective representation can no longer be provided and, in such a case, the litigator shall provide details of the nature of such breakdown; (iii) through circumstances beyond his control, the litigator is no longer able to represent the assisted person; or (iv) some other substantial compelling reason exists; or (b) refuse the application.” (i) the litigator considers himself to be under a duty to withdraw from the case in accordance with his professional rules of conduct and, in such a case, the litigator shall provide details of the nature of such duty; (ii) there is a breakdown in the relationship between the assisted person and the litigator such that effective representation can no longer be provided and, in such a case, the litigator shall provide details of the nature of such breakdown; (iii) through circumstances beyond his control, the litigator is no longer able to represent the assisted person; or (iv) some other substantial compelling reason exists; or (b) refuse the application.”
[14]The first and third sub-paragraphs of Regulation 16(2)(a) clearly address the situations in which the application is initiated by the litigator either because he considers himself to be under a duty to withdraw from the case in accordance with his professional rules of conduct or because, through circumstances beyond his control he is no longer able to represent the assisted person. Similarly, I consider that the second sub-paragraph contemplates a situation where the application is initiated by the litigator, because the litigator is required to provide details of the nature of the breakdown in their relationship. This would not be possible in a situation where the assisted person seeks a transfer of the representation order because he believes the relationship has broken down but the litigator does not share that view. If this is correct, an application by an assisted party can be brought only pursuant to the fourth subparagraph. However, I consider that a breakdown in the relationship between the assisted person and the litigator, such that effective representation can no longer be provided, if demonstrated, would be a substantial compelling reason within the fourth subparagraph even if the litigator did not share that view.[15]In R v Ashgar Khan, (unreported, 10th July 2001) His Honour Judge Richard Wakerley QC, Recorder of Birmingham, as he then was, addressed in detail the correct approach to an application for a transfer of a representation order. He expressed his concern at the considerable number of applications made at a late stage of proceedings when significant costs had already been incurred by the original solicitor, on the basis of no reason at all or a claimed loss of confidence or breakdown in the relationship. He emphasised that the court had a duty to bear in mind the cost to the taxpayer and that, as a result, good reason must be established before a representation order was transferred. He emphasised that the court will insist on strict compliance with the provisions of Regulation 16 which, he explained, meant that the grounds of the application and full particulars need to be specified by the existing representative. I understand this passage to refer, therefore, to an application made on the basis of one or more of the first three subparagraphs of Regulation 16(2). He then continued as follows:
“Next, the substantial compelling reason under paragraph 2(iv) if relied on needs to be specified so that I can identify it. It will not generally be sufficient to allege a lack of care or competence of existing representatives. As from 2nd April 2001 only those solicitors who have obtained a criminal franchise contract with the Legal Services Commission are able to undertake work and obtain a representation order in criminal proceedings. Those franchises are only obtained after rigorous audit, inspection and control by the Legal Services Commission, the Commission thereby satisfying itself that the professional standard of solicitors with franchises is of a high order. The court will infer from that fact that such solicitors do provide representation of good quality. Only in extremely rare circumstances, and where full particulars are given in the application, will a general ground of loss of confidence or incompetence be entertained. It must further be pointed out that it will not be sufficient simply to say that there is a breakdown in the relationship between solicitor and client. Many breakdowns are imagined rather than real or as the result of proper advice. This court will want to look to see what the cause of that is.”
It is clear from these remarks that the judge was addressing an application pursuant to the fourth subparagraph of Regulation 16(2).[16]This passage was approved by the Court of Appeal Criminal Division in R v Ulcay [2008] 1 WLR 1209 where Sir Igor

Judge P., as he then was, observed:

“The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer's retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated [incantation] of the mantra "loss of confidence" that an application will be granted.”
[17]I would add that there may be many reasons why a person may wish to change his or her legal representation. In a situation where a person already has representation, another solicitor who becomes involved has an obligation to be careful with regard to his or her professional responsibilities.

The jurisdiction of the Clerk to the Justices

[18]It is convenient to begin by addressing whether the correct target of this legal challenge is the decisions of the magistrates made on 3rd October 2011 or the decision of their clerk made on 20th October 2011. This raises the question whether the clerk to the magistrates has the power to make an order for transfer of a representation order or confirm a decision of the magistrates transferring such an order.[19]Mr. Ormondroyd draws attention to the fact that in the Defendant’s Acknowledgement of Service Mr. Hehir accepts that the decision whether or not to transfer a representation order is one for the magistrates and that he was mistaken in not referring the matter back to the court. I consider that this concession is correctly made.[20]The power to transfer a representation order is confirmed by Regulation 16(1) on “the court before which the proceedings are heard”. In the present case this refers to Swansea Magistrates’ Court. Schedule 1 to the Interpretation Act 1978 provides that “magistrates’ court” has the meaning assigned to it by section 148, Magistrates’ Court Act 1980 which, in turn, provides:
“148.- “Magistrates’ Court”. (1) In this Act the expression “magistrates’ court” means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law.”
I consider that the power to transfer a representation order is conferred on the justices and not on their clerk. Mr. Hehir lacked jurisdiction to make or confirm such an order.[21]I have no doubt that Mr. Hehir, confronted as he was by an unhappy dispute between two local firms of solicitors, was anxious to try to bring it to an amicable resolution and that he acted throughout in good faith for the best of motives. However he lacked jurisdiction. It follows that the operative decisions are those of the magistrates made on 3rd October 2011 and it is to the challenge to those decisions that I now turn.

The magistrates’ decisions of 3rd October 2011

[22]Mr. Ormondroyd, entirely understandably, places at the forefront of his submissions the concession made by Mr. Hehir that the magistrates’ decisions were vitiated. In his email of 18th October 2011, in which he directed representatives of each firm to attend before him so that he could consider the application afresh, Mr. Hehir expressed his view that the magistrates’ decisions were vitiated because the court did not consider the Regulations. Similarly, in the Acknowledgement of Service Mr. Hehir states that he had formed the view that the decisions taken on 3rd October 2011 were vitiated because the court did not fully consider the Regulations. Here, Mr. Ormondroyd submits that Mr. Hehir did have authority to speak on behalf of the Defendant court and he submits that the concession is properly made and is conclusive of the matter. However, I consider that Mr. Hehir was here expressing his personal view. Moreover, the Acknowledgement of Service lodged on behalf of the Defendant makes clear that it neither supports nor contests the claim. To my mind it is incumbent on this court to consider the grounds of challenge and to come to its own conclusion.

Further representations on behalf of the Defendant

[23]On 11th November 2011 the Clerk to the Justices sent to the Administrative Court additional representations made by each of the Legal Advisors who dealt with the applications for transfer of legal aid in court of 3rd October 2011. A statement dated 10th November 2011 by Mrs. Alison Curran, Court Legal Advisor who was Legal Advisor in Court 3 on 3rd October 2011, deals with the application to transfer legal aid in respect of Gareth Mansell. A statement dated 11th November 2011 by Mr. Richard Adamec, Bench Legal Advisor who was Legal Advisor in Court 1 on 3rd October 2011 deals with the application for transfer of legal aid in respect of Mr. Gallagher and Mr. Latham.[24]Mr. Ormondroyd has not objected to our looking at these further statements. However, he has submitted that they should be approached with a considerable degree of caution. While making clear that he is certainly not alleging bad faith on the part of Mr. Hehir, Mrs. Curran or Mr. Adamec, he points to the fact that there is no contemporaneous note of either of the decisions and suggests that it is difficult to reconstruct the reasoning after the event. In this regard he relies on R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302 where the Court of Appeal considered an affidavit on behalf of the decision-maker explaining that the true reasons for the decision where not those expressed in the decision letter but different reasons set out in the affidavit. The Court of Appeal identified the real question as not whether the evidence of new reasons was admissible but whether the respondent should be permitted to rely on them and justify the legality of the decision on the basis of them. (See Hutchison L.J. at pp 308J – 309A). In R. (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 Stanley Burnton J, as he then was, considered the relevant authorities and summarised the applicable principles, in a case such as the present, where the adequacy of the reasons is not itself a condition of the legality of the decision, in the following terms. “The relevant considerations include the following which to a significant degree overlap:(a) Whether the new reasons are consistent with the original reasons.(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision…(d) The delay before the later reasons were put forward.(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.” (at paragraph 34).[25]It is unfortunate that there is no contemporaneous note of the submissions and the reasons given by the magistrates for their decisions. I realise that there are many pressures on a busy magistrates’ court but it should be possible to make a brief contemporaneous note of what happened at the hearing of an application such as these. The representations with which we have been presented were made some five weeks after the hearing for the purpose of the judicial review proceedings which had already been commenced. I note that there is a conflict between Mr. Hehir’s acceptance that the Regulations were not considered at the hearings and Mrs. Curran’s note which says that they were considered at the hearing at which she assisted. However, as there is no contemporaneous record of the reasons given by the magistrates, this is not a case where there is a conflict between the original reasons and the reasons now relied upon. Furthermore, it is not clear from either of the notes whether they had been circulated in draft to the magistrates for their approval before they were finalised. Nevertheless, I readily accept that each of these notes is a genuine attempt to assist this court. Furthermore, these notes are the only evidence available to us as to the process by which the different panels of magistrates reached their conclusions in these two cases.

The magistrates’ decision in the case of Gallagher and Latham

[26]The representation by Mr. Adamec dated 11th November 2011 is a statement made to the best of his recollection, there being no contemporaneous note of the hearing on 3rd October 2011. Mr. Adamec explains that the case of Gallagher and Latham was the first case dealt with in a busy court list that morning. Both defendants had been before the court on 26th September 2011 when they were represented by Ms. Griffiths. When Mr. Adamec asked who represented the defendants both Ms. Griffiths and Mr. John indicated that they did. Mr. John then indicated that he had been approached by the defendants who had indicated that they wanted Mr. John to act for them. Mr. Adamec asked whether the matter could be dealt with outside court. Mr. John stated that Ms. Griffiths would not speak to him. As a result, Mr. Adamec decided that the court should deal with the question of transfer of the representation order on the basis of oral representations. Ms. Griffiths objected to this course stating that there should be a written application setting out the grounds on which transfer was sought. Mr. Adamec says that she cited case law. The justices, on Mr. Adamec’s advice, refused the application and said they would hear oral representations in order to avoid delay. At this point the defendants were brought up to court. Mr. Adamec’s account continued “6. Both parties made representations, Mr. John stating that both defendants had lost confidence in their current legal representatives. Mr. John did not expand the argument to any great extent, in part not to embarrass Ms. Griffiths as a result of what the defendant said to him. To the best of my recollection he said he was in receipt of written authority from both defendants. 7. Ms. Griffiths for her part re-iterated the matter should be dealt with by written representation, and disputed on what basis the defendants had lost confidence in her. 8. Following representations the court asked (possibly inappropriately) who they wished to act for them and both indicated Mr. John. 9. The bench was advised along the lines that following representations the issue as to whether the defendants had lost confidence in their existing legal representative was a matter for the court to determine. I also advised the court that they may also wish to consider the stage proceedings had reached, being the defendants’ second appearance before court following an initial bail application and that essentially the proceedings were still in their infancy. 10. Following discussion the Justices deemed that the defendants had lost confidence in their existing solicitor and allied to the fact that the proceedings were in their early stages the Justices transferred the legal aid orders to Mr. Stuart John of Rees Davies and Partners.”[27]Regulation 16 does not expressly impose a requirement that the application be made in writing. However, the requirement in paragraph (1) that “any such application shall state the grounds on which it is made” seems to me to contemplate an application in writing. It will normally be appropriate for the court to require a written application for the transfer of legal representation, although it may be that in exceptional circumstances it may consider an oral application. More fundamentally, however, the represented parties seeking the transfer of the representation order must provide a full explanation of the “substantial compelling reason” which is said to justify the transfer. Simply to assert there has been a breakdown in the relationship will not be sufficient. The court needs to be fully informed in order that it may investigate whether there has been a genuine breakdown for a reason which would justify a transfer of the of the representation order, as opposed, for example, to the mere giving of proper but unpalatable advice. In the present case it is clear that although Mr. John, on behalf of Rees Davies and Partners, stated that both clients had lost confidence in their current legal representative, he did not provide any reasons for the loss of confidence or any explanation as to how this came about. In the absence of such reasons or explanation, Ms. Griffiths was unable to respond to the application.[28]Mr. Adamec’s representation includes no reference to the Regulation or to the test which would have to be satisfied before the representation order could be transferred. There is nothing here to indicate that the magistrates were advised of those matters or that they approached the issue on the correct legal basis when they took their decision. On the contrary, Mr. Adamec’s representation strongly suggests that the issue was approached on the basis that there was a general discretion in the court to order the transfer of legal representation. The statement that it was for the court to decide whether the defendants had lost confidence in their existing legal representatives shows that the court focused on that issue and not on whether there had been a breakdown in the relationship for a genuine reason which would justify a transfer of legal representation. Furthermore, the failure to identify during the hearing the reasons why the relationship was said to have broken down demonstrates that the court cannot have applied the correct test. For these reasons, I accept the submission of Mr. Ormondroyd that the court approached the application to transfer the representation orders of Gallagher and Latham on an incorrect legal basis and that the decision is vitiated by an error of law.[29]I would refer in passing to the reference in Mr. Adamec’s submission to the fact that he advised the magistrates that they may wish to consider the stage that the proceedings had reached and the fact that these proceedings were essentially still in their infancy. I would accept that on an application to transfer a representation order the duration of the relationship with the original representative and the quantity of work undertaken by the original representative are likely to be relevant considerations. Thus I note that in Ulcay Sir Igor Judge P., delivering the judgment of the court, observed that the members of the court found in practice that in most cases courts faced with this problem were prepared to agree to at least one change of representative, provided it was proposed in reasonable time before the trial and before substantial costs had already been expended in the preparation of the defence case. Similarly, although the observations of Judge Wakerley in Ashgar Khan are of general application, they were made against a background of applications made at a late stage of proceedings when significant costs had already been incurred. However, the mere fact that an application to transfer is made at an early stage of the proceedings when only a limited amount of work has been done is not, of itself, a reason for ordering a transfer of legal representation. The court must consider in each case whether a substantial compelling reason exists in the sense explained in these authorities. In exercising its discretion within that context, the fact that only limited work has been done by the original representatives may be a factor tending in favour of transfer.[30]In the light of my conclusion that the magistrates erred in law, it is not necessary to consider whether there was procedural unfairness either at common law or under Article 6 ECHR in the failure to notify Ms. Griffiths of the underlying grounds of the application. Similarly, it is not necessary to consider the further alternative submission on behalf of the Claimant that the decision to transfer the representation order was Wednesbury unreasonable.

The decision of the magistrates in respect of Gareth Mansell

[31]Mrs. Alison Curran was the legal advisor in Court 3 on 3rd October 2011 when the magistrates heard an application to transfer the order for the legal representation of Gareth Mansell to Rees Davies and Partners. Mrs. Curran has provided the court with her representations in a document dated 10th November 2011. She explains that the application for transfer was made by Mr. John of Rees Davies and Partners and that Clive Rees Associates objected to the transfer. The application for transfer was not made in writing but the response from Clive Rees Associates was in a letter dated 26th September 2011. Mrs. Curran states that she referred the magistrates to Regulation 16 which sets out the procedure for such applications. Mr. John was asked to make representations as to why the application was not in writing and why the court should hear an oral application. Ms. Griffiths was given the opportunity to respond to that application. Mr. John told the court that Gareth Mansell was a youth in custody and that a fitness to plead hearing was to take place within ten days of the application. The court decided to allow an oral application by Mr. John in view of the imminent trial and the age of the defendant and his remand status. Mrs. Curran’s account continues as follows. “We heard firstly the application from Mr. John who gave detailed reasons for the transfer. We were also in receipt of a written authority from Gareth Mansell dated 21st September 2011 requesting the transfer to Messrs Rees Davies and Partners on the basis that he had lost confidence in Clive Rees and Associates. Ms. Griffiths made detailed representation in response to the application. I advised and read in open court the decision in R v. Khan 2001 and again referred the magistrates to Regulation 16. Both Mr. John and Ms. Griffiths were given the opportunity to respond to my advice. After hearing detailed representations the magistrates retired to consider the request. The decision of the court was to allow the transfer in accordance with Regulation 16 in that there was a breakdown in the relationship with the client such that effective representation could no longer be provided. The basis of the magistrates’ decision was that: The defendant indicated in writing that he had lost confidence in the solicitor. Gareth Mansell did not agree that he was unfit to plead; in fact he was indicating a guilty plea. He did not want the solicitor to pursue the fitness to plead issue and was concerned that he was pursuing it. Mr. John was representing him and had legal aid for all other matters including a robbery case at the Crown Court to which he had pleaded guilty. There were no issues regarding fitness to plead in that case. It was not necessary to go to the expense of instructing psychologists. Gareth Mansell was 17 years old and in custody awaiting sentence at the Crown Court. It seemed to us that there was such a conflict of advice being given to him by each solicitor and such a breakdown in his relationship and trust that he could no longer continue to be represented by Ms. Griffiths.”[32]First, Mr. Ormondroyd submits that the magistrates erred in law in that they failed to apply the correct test under Regulation 16(2)(a)(iv) as explained in Ashgar Khan and Ulcay. He points to the fact that Mrs. Curran’s summary of the decision and its basis uses at two points the language of Regulation 16 (2)(a)(ii) which, he submits, was not applicable. Furthermore, he submits that the further account of the basis of the decision does not show that the correct test was applied.(1) I accept that subparagraph (ii) can have no application here because it contemplates a situation where the existing representative is maintaining that the relationship has broken down. However, as explained earlier in this judgment, a case in which the assisted person maintains that the relationship has broken down such that effective representation can no longer be provided can be accommodated in subparagraph (iv).(2) Mrs. Curran states that at two points during the hearing she referred the magistrates to Article 16. Furthermore, she states that she advised them of and read in open court the decision in Ashgar Khan before giving Mr. John and Ms. Griffiths the opportunity to respond in relation to her advice. I note that the great majority of the reasoning in Ashgar Khan relates to subparagraph (iv).(3) Mrs. Curran states that Mr. John gave detailed reasons for the application to transfer and that Ms. Griffiths made detailed representations in response. This should be contrasted with the statement by Ms. Griffiths in her original witness statement in support of the application for judicial review in which she describes Mr. John’s submissions as “minimal”. It is not possible to resolve this conflict of evidence on this application for judicial review. However, I am satisfied on the basis of Mrs. Curran’s summary of the magistrates’ decision, that they were made aware of the fitness to plead issue and of the fact that Rees Davies and Partners were representing Gareth Mansell in other proceedings including other proceedings in the Crown Court in which he had pleaded guilty to robbery and was awaiting sentence.(4) I am satisfied that in this case the magistrates did approach the application on the correct legal basis. Their legal advisor had expressly drawn their attention to Regulation 16 and to Ashgar Khan and they would have had fully in mind the test to be satisfied before Gareth Mansell could secure a transfer of his representation order, notwithstanding the fact that these matters were not recited in Mrs. Curran’s account of their decision. The ritual incantation of a particular form of words is not necessary. The substance of their decision, in Mrs. Curran’s account, shows that they did approach the issue on the correct legal basis. They examined what had happened in relation to the issue of fitness to plead and assessed the impact of the conflicting advice from different sources on the relationship between Gareth Mansell and his original representatives.[33]Mr. Ormondroyd’s second submission, namely that the proceedings were procedurally unfair because of the failure to disclose the precise grounds on which the transfer was sought, has in substance been considered above. I am satisfied that it was apparent at the hearing on 3rd October 2011 that the application was founded on a loss of confidence in the original solicitors arising from the fitness to plead issue. Ms. Griffiths was able to address that issue and did so.[34]Thirdly, Mr. Ormondroyd submits that the magistrates’ decision to transfer Gareth Mansell’s legal representation was Wednesbury unreasonable. He submits that, in the absence of any finding that the Claimant had been incompetent or dishonest in dealing with this case, the change in approach by the represented party could only be explained by a change in instruction or a wish to sweep under the carpet a genuine issue as to fitness to plead. Neither, he submits, is a compelling or proper basis for changing solicitors.[35]To my mind, the situation with which the magistrates were confronted in this case was distinguishable from that in which a represented party seeks a transfer of representation order from his existing representatives simply because he has received proper advice which he finds unpalatable. Here, Gareth Mansell had received conflicting advice from two reputable firms of solicitors, both of which are authorised by the Legal Services Commission to carry on criminal legal aid work. I have referred above to the obligation on solicitors in such circumstances to conduct themselves with careful regard to their professional responsibilities. In the particular circumstances of this case I do not consider that the magistrates were under an obligation to investigate the matter any further than they did or to decide which advice was correct. The fact that different advice had been given by a second firm of solicitors was capable of having a fundamental effect on Gareth Mansell’s confidence in his original representatives. The magistrates found that it did. They were therefore entitled to conclude that there was such a conflict in advice given to him by each solicitor and such a breakdown in his relationship and trust with his original solicitor that he could no longer continue to be represented by that firm. Moreover, it seems to me that this language, derived from subparagraph (ii) is not inappropriate to explain the rational basis of the magistrates’ decision under subparagraph (iv). Furthermore, it was a relevant consideration to which the magistrates were entitled to have regard that Rees Davies and Partners were already acting for Gareth Mansell in other matters, including one before the Crown Court in which he had pleaded guilty and was awaiting sentence.[36]For these reasons I have come to the conclusion that the decision of the magistrates to transfer the representation order in respect of Gareth Mansell was not flawed.

The hearing before Mr. Hehir on 20th October 2011

[37]For reasons stated earlier in this judgment I consider that Mr. Hehir had no jurisdiction to make any decision on the transfer of the representation order. I can therefore deal very briefly with the submissions before him and the reasons he gave for confirming the magistrates’ decisions to transfer the representation orders.[38]With regard to the applications of Gallagher and Latham I would make the following observations.(1) Mr. Hehir states in his representations that at the hearing on 20th October 2011 Mr. John had explained that the basis of the transfer was a loss of faith in Clive Rees Associates based on legal advice that Mr. Latham had received to plead guilty to an offence of failing to surrender to bail, which had resulted in his losing his remand privileges at Swansea Prison. I have difficulty in understanding how this could found a valid ground for transfer of the representation order. On the basis that Latham had instructed Ms. Griffiths that he had no reasonable excuse for failing to surrender, no competent solicitor could advise him to plead not guilty in order to preserve his privileges as opposed to obtaining full credit for an early guilty plea. Mr. Hehir, quite correctly, does not appear to have accepted this as a valid ground.(2) Mr. Hehir states that Ms. Griffiths accepted at the hearing on 20th October 2011 that when she visited Mr. Latham in Swansea Prison on 29th September 2011 he had indicated to her that he was “shopping around” and might instruct solicitors from Liverpool where he normally resides in place of Clive Rees Associates. Mr. Latham was not entitled to shop around for alternative representation in the absence of a substantive compelling ground.(3) Mr. Hehir found that no substantive work had yet been done other than as duty solicitor and the preliminary hearing in the court. However this overlooks the visit by Ms. Griffiths to Gallagher and Latham at HMP Swansea on 29th September 2011. The possible relevance of the amount of work already done by the original representatives has been considered above.[39]So far as the purported decision of Mr. Hehir in respect of the representation order of Gareth Mansell is concerned, I would simply observe that neither the fact that this was not the first occasion on which Gareth Mansell had sought to instruct another firm nor the fact that the change of representation resulted in the guilty plea before substantial costs had been incurred can be considered a valid reason for the transfer of a legal representation order.

Remedies

[40]Mr. Ormondroyd submitted that this court should quash the order transferring to Rees Davies and Partners the legal representation of Gallagher and Latham. He accepted that the effect would be to reinstate Clive Rees Associates as the legal representatives of Gallagher and Latham. I feel some unease at that course. Notwithstanding the relative speed with which this application for judicial review has been brought to a full hearing before a Divisional Court sitting in Cardiff, matters have inevitably moved on since 3rd October 2011. In particular, we have been told that Gallagher and Latham have entered not guilty pleas to the drug trafficking offences with which they are charged and were due to be committed to the Crown Court on 17th November 2011, the day of the hearing before the Divisional Court in this case. Both, we are told, are still represented by Rees Davies and Partners. Rees Davies and Partners have taken no part in the proceedings before this court and, as a result, we have no information as to the work which they have undertaken since 3rd October on behalf of these clients. If this court were to quash the order transferring representation, Rees Davies and Partners would not be paid for the work they have done.[41]This court has considered making an order quashing the Magistrates’ decision with prospective effect only. However, that would still reinstate Clive Rees Associates and effect a second change of representation causing additional cost to the public and, possibly, disruption to the presentation of the defence of Gallagher and Latham in the Crown Court. Having regard to all of these considerations, I have come to the conclusion that the appropriate remedy is declaratory relief. Accordingly, I would grant a declaration that the decision of the magistrates transferring the legal representation order of Gallagher and Latham to Rees Davies and Partners was made under an error of law.[42]As a result, the Claimant has achieved something of a Pyrrhic victory. However, it has established the principle for which it contended in the case of Gallagher and Latham. I would propose to make an order that it be paid its costs of these proceedings from public funds.[43]Finally, I emphasise that the proceedings have been concerned with a challenge by the Claimant to the legality of the decisions of the Swansea Magistrates’ Court. This court has not been directly concerned with issues arising between Clive Rees Associates and Rees Davies and Partners.

The Hon. Mr. Justice Beatson :

[44]I agree.