Ames, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2250 (Admin)

[2018] EWHC 2250 (Admin)Case No CO/992/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/08/2018
Before
LORD JUSTICE HOLROYDE and MR JUSTICE GREEN
Between
THE QUEEN on the application of DAVID EDWARD AMESClaimantTHE LORD CHANCELLORDefendant(1) ANNETTE HENRY QCInterested Parties(2) DAVID MILLERInterested Party
Anthony Speaight QC (instructed by Cartwright King) for Claimant and Interested PartiesPaul Nicholls QC and Malcolm Birdling (instructed by Government Legal Department) for DefendantHearing Hearing dates: 12 th, 13 th June 2018
Judgment Approved
[1]Mr David Ames (“the claimant”) has been charged by the Serious Fraud Office (“SFO”) with offences of fraud. He faces what is expected to be a long and complex trial. He has the benefit of public funding for his defence at that trial. He is represented by solicitors Cartwright King, and hopes to be represented by counsel of his choice, the Interested Parties Ms Henry QC and Mr Miller (collectively, “counsel”), together with a second junior barrister who is yet to be instructed. However, counsel have been unable to reach agreement with the Legal Aid Agency as to their remuneration. In these proceedings, the claimant – supported by counsel as Interested Parties - seeks judicial review of the final offer made by the Legal Aid Agency in respect of counsel’s fees. For convenience, and because the Legal Aid Agency administers the public funding although the Lord Chancellor has responsibility for its provision, we shall refer to the defendant as “the LAA”. A rolled-up hearing was directed, at which the court would consider the application for permission to bring judicial review proceedings and, if permission be granted, would determine the substantive application for judicial review. The claimant subsequently made applications for permission to amend his Statement of Facts and Grounds, for an extension of time in which to file witness statements and for relief from sanctions for failing to file the trial bundles within the relevant time limit. All these applications and claims are resisted by the LAA. At a hearing on 12th and 13th June 2018, the court heard submissions on all matters, and reserved judgment. This is the judgment of the court, to which we have both contributed.[2]We note at the outset, as we did at the hearing, that although no application has been made for the court to impose reporting restrictions, or otherwise to derogate from the important principle of open justice, it is nonetheless important to keep in mind that the claimant faces a criminal trial. We therefore remind anyone who is minded to publish this judgment of the need to avoid publishing anything which may adversely affect the fairness of the criminal trial. Under the Contempt of Court Act 1981, it can be a contempt of court to publish anything which creates a substantial risk that the course of justice in that criminal trial will be seriously impeded or prejudiced. The criminal proceedings[3]It is sufficient for present purposes to summarise very briefly the nature of the charges against the claimant. He is accused of fraud in relation to the collapse of a group of companies, the Harlequin group, whose business had been the sale of properties in holiday locations, in particular in the Caribbean. It is alleged that some 9,000 properties, with a total completion value of £1.4 billion, were sold off-plan, and that some 8,200 deposits totalling about £400 million were received from would-be purchasers. However, only 200 properties had been built, and no more than 20 sales completed, when Harlequin went into liquidation in 2014. The scale of the alleged fraud is, therefore, very substantial.[4]The SFO began a formal investigation into the Harlequin group in March 2013. Unusually, that investigation did not include either a search of the premises occupied by the claimant and his companies or the seizing of any of the computerised records of the business of the group. Those records therefore remain under the control of the claimant. As will be seen, that is a feature of the criminal proceedings on which he and counsel place heavy emphasis in this claim for judicial review.[5]The claimant, then represented by different solicitors, was interviewed under caution by the SFO in April 2013 and November 2015. In very brief summary, his answers were to the effect that he had acted honestly throughout, that he had relied on the advice of professionals, that he had been badly let down by some of the professionals whose advice he had trusted and that he had himself been a victim of fraud. The claimant’s legal representation in the criminal proceedings[6]The claimant made his first appearance in a magistrates’ court in March 2017. He was granted a representation order which named Cartwright King (hereafter, “the solicitors”), as his solicitors. The Interested Party Mr Miller was instructed as junior counsel. The case was transferred to the Crown Court at Southwark, where the claimant made his first appearance on 19th April 2017. The Interested Party Ms Henry QC was then instructed as leading counsel.[7]In the summer of 2017 the LAA entered into a contract with the solicitors under the Very High Cost (Crime) Cases (“VHCCs”) scheme. No agreement was reached as to counsel’s fees. The fact that no agreement has been reached was the subject of observations at hearings before the nominated trial judge, HH Judge Loraine-Smith, in September and November 2017. Officials of the LAA attended both hearings.[8]The claimant was arraigned on 7th November 2017. He pleaded not guilty to all charges. A trial date of 7th January 2019 was set, with an estimated length of trial of 14-16 weeks. That trial date was however subsequently vacated, and as we understand it there is at present no fixed date for the trial.[9]We will refer below to the chronology of the correspondence between counsel and the LAA, and the fee offers which the LAA have made. Before doing that, it is convenient to summarise the procedural history of this application for judicial review, and to set out the relevant statutory framework. The judicial review proceedings[10]A letter before claim, indicating an intention to apply for judicial review, was sent by counsel to the LAA on 23rd December 2017. The LAA responded on 19th January 2018. The claim form and Statement of Facts and Grounds were issued in March 2018. The defendant’s Summary Grounds of Resistance were filed in early April 2018.[11]The application for permission to apply for judicial review was considered by Julian Knowles J on 11th April 2018. He directed the rolled-up hearing to which we have referred. He gave case management directions, including a direction as to the time for serving detailed grounds for contesting the claim. The LAA complied with that direction by filing Detailed Grounds of Resistance on 2nd May 2018. He further directed that any application by the claimant to lodge further evidence must be made within 7 days of the service of the Detailed Grounds of Resistance, and that the claimant must file and serve a trial bundle not less than 2 weeks before the judicial review hearing. The claimant did not comply with those orders.[12]On 30th May 2018 the claimant applied for permission to amend his Statement of Facts and Grounds, for an extension of time to serve witness statements by counsel and by Ms Graver, a person with experience of fees in VHCC contracts, and for an extension of time to serve the trial bundles.[13]We now turn to the statutory framework relevant to this claim for judicial review. The statutory framework and the IFFO scheme[14]Sections 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), so far as material for present purposes, provide:
“1 Lord Chancellor’s functions (1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part. (2) In this Part, “legal aid” means … (b) services consisting of advice, assistance and representation required to be made available under section 13, 15 or 16 or paragraph 4 or 5 of Schedule 3 (criminal legal aid). … 2 Arrangements (1) The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purpose of carrying out the Lord Chancellor’s functions under this Part. … (3) The Lord Chancellor may by regulations make provisions about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part.”
[15]Section 16 of LASPO, so far as material, provides:
“16 Representation for criminal proceedings (1) Representation for the purposes of criminal proceedings is to be available under this Part to an individual if – (a) the individual is a specified individual in relation to the proceedings, and (b) the relevant authority has determined (provisionally or otherwise) that the individual qualifies for such representation in accordance with this Part (and has not withdrawn the representation).” (a) the individual is a specified individual in relation to the proceedings, and (b) the relevant authority has determined (provisionally or otherwise) that the individual qualifies for such representation in accordance with this Part (and has not withdrawn the representation).”
[16]It is common ground between the parties that the criteria in section 16 are met in the case of the claimant. He is therefore entitled to representation in accordance with LASPO and regulations made pursuant to LASPO.[17]The Criminal Legal Aid (Remuneration) Regulations 2013, made pursuant to section 2(3) of LASPO, make provision for payment of fees in accordance with the graduated fee scheme. That scheme applies to the majority of criminal cases in the Crown Court, but by regulation 3(8) it does not apply to VHCCs. VHCCs are defined by regulation 2, which so far as is relevant to advocates provides as follows:
“‘Very High Cost Case’ means a case in which a section 16 determination has been made and which the Director classifies as a Very High Cost Case on the grounds that … (b) in relation to fees claimed by advocates, if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 60 days and the Director considers there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act.” (b) in relation to fees claimed by advocates, if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 60 days and the Director considers there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act.”
[18]It is again common ground between the parties that the criminal proceedings against the claimant are a VHCC within that definition. In such a case, the relevant provision in the 2013 Regulations is regulation 12A, which was inserted into the Regulations by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013. It is in these terms:
“12A Where services consisting of representation made available under section 16 of the Act (criminal legal aid) are provided in a case which is the subject of a Very High Cost Case contract, fees for that case must be paid – (a) in accordance with the terms of that contract; and (b) at the rates set for the appropriate category and level of representative set out in Schedule 6 to these Regulations.”
Schedule 6 (hereafter “the Schedule”) contains tables which set out the rates of fees for particular aspects of the work involved in the representation of a defendant in criminal proceedings. The nature and extent of the work to be done by each advocate under a VHCC contract must be identified in a work plan which the LAA must approve. In relation to work done in a case which is the subject of a VHCC contract signed on or after 2nd December 2013, Part 3 of the Schedule specifies hourly rates for preparation and advocacy rates for a full day’s hearing. (a) in accordance with the terms of that contract; and (b) at the rates set for the appropriate category and level of representative set out in Schedule 6 to these Regulations.”[19]The evidence before this court includes a statement by Mr Robert Heard, Head of Operations in the LAA’s Criminal Cases Unit, in which he explains that in practice, advocates in VHCCs are not remunerated in accordance with the hourly rates set out in the Schedule, but are instead remunerated under the Interim Fixed Fee Offer (“IFFO”) scheme. That scheme was devised, following discussions between the Ministry of Justice, the LAA and the Bar Council, as a solution to problems which arose in 2014 when barristers declined to accept instructions in VHCCs following a reduction in the rates contained in the Schedule. Mr Heard describes the aim of the scheme as being “… to provide reasonable payment according to the individual circumstances of each case (within agreed parameters) and to give advocates a greater degree of certainty regarding the overall payment that would be made in a case from the outset.” He goes on to explain that the scheme involves the LAA agreeing with the advocate(s), at as early a stage of the proceedings as possible, a fixed fee, payable in three instalments, to cover all the work to be carried out in the case by the advocate(s). Mr Heard says that the factors taken into account when calculating the fee include the volume of material, both evidence and disclosure; the estimated trial length; the nature and complexity of the case; and the particular role of the defendant where more than one person is charged. His statement then continues as follows; “12. … Paragraph 40 of the LAA’s letter in response to the letter before claim explains the general assumptions which are made in order to reach an initial level of fee. Once the fee is calculated, the case manager makes an offer to the Instructed Advocate.13. Paragraph 41 of the LAA’s letter explains that there are any number of factors that might lead to the offer being increased during negotiations. Advocates are entitled to make representations about the volume of material (used or unused) in order to persuade the Case Manager to generate a higher fee. In addition to these factors, there may be specific factors relating to a case’s individual complexity or significance which justify a higher payment in one case over another.14. If the negotiations result in an agreement, the offer is contained within an IFFO contract and, once signed, the Instructed Advocate is entitled to immediate payment of the first instalment.15. There is some flexibility within the IFFO contract to increase the case fee where there are significant changes during proceedings, such as the service of large volumes of additional evidence. Nevertheless, the LAA’s experience has shown that advocates’ clear preference is to sign a contract which gives them some certainty that the fee agreed at the outset reflects the value and shape of case as they see it likely to develop. Therefore, it has become established practice for LAA VHCC Case Managers to gather as much information about the nature and shape of a case as possible, and the quantity of material, before calculating a fee offer.”[20]It is necessary for us to quote the paragraphs of the LAA’s letter of 19th January 2018, to which Mr Heard refers: “40. The initial fee is calculated by estimating the time that might be taken to prepare the case and using the hourly rates set out in the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013. The LAA uses the following general assumptions to reach an initial level of fee offer:a. Used evidence pages: 100% are included in the fee.b. Unused evidence pages: 25% included in the fee.c. Time allowed per used page: 1.25 minutesd. Time allowed per unused page: 30 secondse. Other preparation (hours): 250f. Preparation hours during trial: 2 hours per day. 41. There are then any number of factors (depending on the information given to the Case Manager and the views expressed by the defence team) which may result in an adjustment of the assumptions and a higher fee offered, including, but not limited to: whether the material in question may be accorded more weight because of its particular complexity; whether there are large amounts of material not usually found or remunerated – such as third party or defence generated material; or whether there are particular features which warrant an enhancement, such as a novel and complex legal dimension or particular public interest.” a. Used evidence pages: 100% are included in the fee. b. Unused evidence pages: 25% included in the fee. c. Time allowed per used page: 1.25 minutes d. Time allowed per unused page: 30 seconds e. Other preparation (hours): 250 f. Preparation hours during trial: 2 hours per day.[21]We observe that it is difficult to reconcile this scheme with the mandatory words of regulation 12A quoted in paragraph 18 above. However, none of the parties to these proceedings takes any point in that regard, and it is clear from the evidence and submissions that the IFFO scheme is a sensible pragmatic solution to what was a serious problem.[22]We turn to the way in which the IFFO scheme has been operated in the criminal proceedings against the claimant. In doing so, it is sufficient for present purposes to refer to the aggregate sums offered in respect of counsel’s fees, without going into the detail of the suggested division of that total as between leading and junior counsel. The LAA’s offers of fees[23]The LAA’s Case Manager in this case is Ms Burdett. On 15th September 2017 she wrote to counsel offering fees for leading and one junior counsel totalling £359,400. She explained that she based the offer on an estimated 70-day trial and that she understood the page count to be 65,850 pages of served material, and unused material comprising 15,000 pages in hard copy and 50,000 pages of disclosable digital material. She said that the offer had been calculated to take account of “a variety of factors including the volume of material, the likely length of trial and the nature and complexity of the case”. She added that the VHCC contract provided for an increase in the fees if the served material, whether used or unused, increased by 30% or more.[24]The case was mentioned before the Crown Court on 21st September 2017. Mr Miller informed the judge that a first fee offer had been made but that it did not take into account the electronic material held by the SFO or the totality of the defence material. He said that the LAA had indicated the offer would be significantly increased.[25]Submissions were made as to when the trial could be heard. The judge, who has long experience of heavyweight fraud trials, indicated that he had not previously come across a case such as this. He noted the feature, unique in his experience, that the SFO had not seized any material from the claimant, and that there was therefore an enormous amount of defence material. He granted authority for a second led junior to be instructed for the defence. He indicated that in his many years as a judge, he had not previously granted such authority.[26]On 27th September 2017 Ms Burdett wrote to counsel offering total fees (for two counsel) of £650,500. She explained that she made this increased offer on the basis of the previous SFO page count, but with the inclusion of an additional 800,000 pages of defence material.[27]There followed discussions between counsel and Ms Burdett, during which reference was made to additional material. On 1st November 2017 Ms Burdett wrote making a further offer to reflect that additional material. The revised offer, now relating to leading counsel and two junior counsel, was in the total sum of £1,015,200. She explained that she did not agree with the page count which counsel had put forward in relation to electronic material, but she accepted that the previous offer had not given enough weight to the volume of unused material. She went on to say this:
“I have produced an estimated page count that takes into account the likely duplication between the hard drive in the possession of the SFO and the Harlequin servers. The page count is of most relevance to the uplift clauses so I wanted to be explicit in terms of how they will work on this case. It is not usual for the IFFO to place so much emphasis on unused material but I have tried hard to take on board the situation your client is in with so much material in his possession. The figure I have used to model the uplift scenarios is an over[all] total of 1,201,738 which includes all material served to date including the electronic material recorded on the recent SFO spreadsheet. I appreciate the page count is likely to be larger than this but I think this is a reasonable estimate of relevant material that counsel may need to consider. To use a larger figure would be to expand the page count to a point where no barrister could reasonably consider all the material in the time available. Whilst the total includes defence material the contract only allows for served and unused material provided by the Crown to contribute to the threshold for triggering of the uplift clauses. In effect at least 360,521 additional pages would need to be served for the uplift threshold to be met. … I think it is worth acknowledging that although the fee offer is short of what you have indicated you would consider reasonable our position is that it is reflective of the complexity of the case and relatively low volume of served evidence.”
[28]Counsel were dissatisfied with that offer. The fact that no contract had been signed was raised before the trial judge at a hearing on 10th November 2017. The judge referred in a ruling to the enormous quantities of material held by the defence. He referred to the fact that counsel had so far done some 500 hours of preparation work but did not yet have legal aid, a position which he described as “absurd”. He expressed the view that the claimant would know where material helpful to his defence could be found, that no one should trawl through irrelevant material and that the defence work, if publicly funded, must be “targeted and accountable”. He mentioned the possibility that the claimant might apply for proceedings to be stayed if his legal representatives could not be paid for the proper preparation of his defence. He urged the parties to do all they could to resolve the impasse.[29]On 21st November 2017 counsel made final written representations to the LAA. They set out in a detailed schedule their assessment of the necessary work and the quantities of material. In relation to prosecution schedules, they indicated that the total page count was unknown and said – “We have been able to page count approx. 50% of the schedules (those small enough to ‘print preview’). These equate to approx. 40,000 pages. The other 50% is too large to quantify this way (eg 56 columns on a single excel spreadsheet with entries on c2000 rows). Approx 80,000 pgs @ 2mpp.” Counsel also said – “Please note that our instructing solicitors have informed their contract manager that, amongst the exhibits, there are between 80,000 and 120,000 pages of excel spreadsheets. At this stage, we have only used the minimum number of pages.”[30]Counsel went on to submit that their schedule showed that the fees proposed by the LAA did not allow sufficient time for them even to read the prosecution material, let alone undertake the tasks necessary for proper preparation. They made representations about their professional duties, of which they would be in breach if they did not prepare the case properly or consider the defence material. They submitted that the case is unique, with the volume of material estimated at nearly 100 million pages, much of it defence material. They contended that, under an “old-style” VHCC contract, all of the work and times shown in their schedule would be authorised as part of the work plan and remunerated accordingly. They noted that the LAA would not provide any breakdown of how they calculated their IFFOs, and would not disclose any “formula, guide or protocol as to how the LAA arrive at their offers”. They complained that they had repeatedly set out what work was required, and the time it would take, but the LAA had not indicated what aspects they disagreed with. They noted that there was no appeal process if agreement could not be reached, and enquired what would be done about their work to date if that were the position. They expressed their wish to reach a resolution without the need to seek judicial review or to apply to stay the criminal proceedings as an abuse of the process. They asked the LAA, if their figures were not accepted, “to disclose the ‘calculator’ together with the figures and formula used to determine the level of fees offered to counsel together with guidance/protocols”.[31]In response to those representations, Ms Burdett wrote to counsel on 12th December 2017 making a revised fee offer “that reflects the increase in the served material page count following confirmation that the bundle contains a significant number of spreadsheets”. The revised offer, in relation to three counsel, was in the total sum of £1,204,000. She indicated that the page count she has used in relation to the uplift clauses was 1.3 million pages. She referred to options as to how the fees for the two junior counsel might be apportioned between them, but gave no further detail as to how the offer had been calculated.[32]That was the final offer made by the LAA. It was refused by counsel, who – as we have indicated – sent a letter before claim on 23rd December 2017. In that letter they repeated their request for disclosure of the “calculator” and protocol/guidance used to calculate fee offers. They indicated that if necessary they would take proceedings seeking orders requiring the LAA to disclose the “calculator” etc and to take account of the defence material in determining the fee.[33]In the letter in response dated 19th January 2018 the LAA rejected the criticisms made, and pointed out that the final offer to counsel was the highest offer made since the IFFO scheme began. It said that the calculation of an appropriate fee could not be reduced to a simple, single formula for all cases, and that Case Managers use their experience of funding VHCCs over the years to guide what may generally be considered reasonable, placing each new case in context alongside previous VHCCs. The LAA did not accept that it was under any obligation to disclose “the ‘calculator’ that the Criminal Cases Unit uses in deciding upon the fees to offer under the IFFO scheme”, saying in a footnote that the ‘calculator’ “contains confidential information, including the names of the individuals in the Criminal Cases Unit who are responsible for the operation of the IFFO scheme”.[34]The claim for judicial review then followed. The pleaded cases[35]In summary, the Statement of Facts and Grounds contends that the failure of the LAA to make a higher offer of fees to counsel was irrational and/or unreasonable in a number of respects; that the LAA had acted illegally, because the failure to make a higher offer would have the result that the claimant would be denied his right to a fair trial in the criminal proceedings, and his Article 6 right would thereby be infringed; and that the LAA’s decision as to the level of fees it would offer was flawed by procedural unfairness. The Detailed Grounds of Resistance contend that only the claim based on a breach of Article 6 is a matter of public law, and that the other matters raised by the claimant are not amenable to judicial review; that the Article 6 point is unarguable; and that the decision of the LAA (even if amenable to judicial review) was reached after detailed negotiations with counsel, took into account all relevant matters and was neither irrational nor unreasonable.[36]The proposed amendment to the Statement of Facts and Grounds, for which the claimant seeks permission, consists for the most part of an expansion of the previous pleading to provide more narrative detail and to respond to the evidence served by the LAA. In addition, the proposed amendment adds a claim that the LAA has acted unlawfully in failing to publish its policy, and in particular the “calculator”, by which the fee offer was calculated. That had not previously been pleaded as a specific ground of the claim; but the failure to provide that information had been the subject of a complaint by counsel in correspondence (see paragraph 30 above) and in the letter before claim, and the relief claimed in the original pleading included a claim for “an order for disclosure of the calculator, protocol, guidance and/or formula used by the defendant to calculate IFFOs”.[37]We now turn to the submissions made to us at the hearing. We are grateful to all counsel, and to their respective solicitors, for the assistance which their submissions have given us.[38]We consider first the claimant’s applications. The claimant’s applications[39]The applications for permission to amend and to adduce further evidence were made some three weeks after the time allowed by the case management directions given on 11th April 2018, and were received by the LAA only about a week before the hearing. The bundles were filed just under a week after the due time. Mr Speaight QC, on behalf of the claimant and counsel, apologises for those delays, but submits that the proposed amendment consists solely of additional text giving more detailed particulars of the pleaded grounds, and arises in part from the serving of the LAA’s evidence. He submits that the additional evidence which he seeks to adduce is mainly background information. He explains the delay by reference to the need to obtain all relevant material, and requests relief from sanctions.[40]Mr Nicholls QC, for the LAA, opposes all the applications. He refers us to the familiar principles stated in R (Hysaj) v SSHD [2015] 1 WLR 2472, and submits that the claimant is guilty of serious and significant breaches of the court’s orders, for which no good reason has been shown. He says that the LAA was only made aware of the case which it had to meet a matter of days before the rolled-up hearing which had been listed at the claimant’s request.[41]We deprecate the failure of the claimant and counsel to comply with the orders of the court. We recognise that the LAA has been given less time than it should have been given to consider and respond to the proposed amendment and additional evidence, and we are grateful for the work which has been undertaken to compile, within that limited time, its evidence in response. However, the significance of the breaches of the order is in our view much reduced by the fact that neither the amended pleading nor the further evidence contains anything which can have come as a surprise to the LAA. We accept Mr Speaight’s submission that much of the amended pleading and additional evidence is narrative and additional detail. We have indicated in paragraph 36 above that what seems to us to be the only new ground of claim contained in the amended pleading is a matter which had been plainly raised in correspondence before the proceedings began, and was the subject of a pleaded claim for relief. We are confident that no real prejudice has been caused to the LAA in the presentation of its case, and that the LAA will suffer no injustice if the applications are granted.[42]We therefore grant each of the claimant’s three applications.[43]The application for judicial review raises three broad issues, which in some respects overlap. We will address them in the following sequence: i) To what extent are the grounds of claim amenable to judicial review? ii) Was the decision of the LAA to make its final offer in the terms stated on 12th December 2017 unlawful on grounds of unreasonableness, irrationality or failure to publish the relevant policy or guidance? iii) Was the decision tainted by illegality, because it infringed the claimant’s Article 6 rights in the criminal proceedings? Amenability to judicial review[44]The claimant and counsel submit that in making its final offer under the IFFO scheme, the LAA was exercising a public law function which can properly be the subject of judicial review. As we have indicated, the LAA accepts that in principle judicial review would lie in respect of the ground of claim relating to the claimant’s Article 6 rights in the criminal proceedings, albeit that the LAA submits that the ground is without merit and that permission to argue it should be refused. As to the other grounds of claim, however, the LAA contends that the challenged decision was made at the conclusion of a course of negotiation of a contract between the LAA and counsel, and lacks any public law element.[45]A number of cases were cited to us in relation to this issue. In R v Legal Aid Board ex parte Donn & Co [1996] 3 All ER 1 a firm of solicitors challenged a decision refusing its tender for a contract to represent the plaintiffs in a multi-party action. The principal grounds of challenge were that the decision of the relevant committee was vitiated by serious procedural irregularity and/or want of natural justice. Ognall J held that this was justiciable in judicial review proceedings. He noted that it was common ground between the parties that there is no universal test of when a sufficient public law element will be found to exist. At p11h-j, he said:
“The answer must, it seems to me, fall to be decided as one of overall impression, and one of degree. There can be no universal test. But bearing in mind all the factors drawn to my attention, I prefer the applicants’ submissions. I believe that the function exercised by this committee under the respondents’ arrangements, the purpose for which they were empowered to act and the consequences of their decision-making process, all demand the conclusion that it would be wrong to characterise this matter as one of private law. Even if there were to be arguably some private law remedy, or whether there is none, I am satisfied that, quite independently, the public dimensions of this matter are of a quality which makes it justiciable in public law.”
[46]In R on the application of Menai Collect Limited v Department for Constitutional Affairs [2006] EWHC 724 (Admin), an unsuccessful tenderer challenged the defendant’s award of a contract for the provision in a particular area of “enforcement services” to secure the payment of fines imposed by magistrates’ courts. The principal grounds of challenge were that the relevant decision had been taken in ignorance of material information and on the basis of a misstatement of relevant facts. McCombe J (as he then was) referred to Donn, and to a 1993 decision of a Divisional Court in R v Lord Chancellor’s Department ex parte Hibbit and Sanders. In that case, Waller LJ had said that a governmental body is free to negotiate contracts, and that something more than the simple fact that a government body was negotiating would be necessary to impose any public law obligation in addition to any private law obligations. McCombe J found that the defendant had not been exercising a public law function, saying at paragraph 47 that “the tender evaluation process was an essentially commercial process, notwithstanding the nature of the services which are to be the subject of the contract”. He went on to say – “The manner in which the defendant chose to inform itself as to the merits of the tenders was designed to be as objective as possible. It is not every wandering from the precise paths of best practice that lends fuel to a claim for judicial review. It is, I think, for this reason that the examples given of cases where commercial processes such as these are likely to be subject to review are such as they are in the reported cases, namely bribery, corruption, implementation of unlawful policy and the like. In such cases, there is a true public law element. Here, as in Hibbit, the fact that the decision sought to be reviewed is the placing of a contract with one bidder as opposed to another adds force to the contention that there is no relevant public law obligation in issue… .”[47]In R on the application of Gamesa Energy UK Limited v The National Assembly for Wales [2006] EWHC 2167 (Admin) there was a challenge to the defendant’s tendering process in relation to leases of forestry land on which wind farms would be developed. The principal ground of challenge was that there was no rational or intelligible justification for certain features of the process, those being aspects which had penalised the claimants. Gibbs J referred to a decision of the Court of Appeal in R (Tucker) v Director General of the National Crime Squad [2003] ICR 599, in which it had been held that the fact that the defendant was a public body, making a decision against the background of a police operation involving the arrest of police officers, did not confer a sufficient public law element on what was essentially a managerial decision as to the secondment of a particular officer; and that was so, even though the claimant had no private law remedy available to him. Gibbs J found that on the facts of the case before him, the process was not susceptible to judicial review having regard to the subject matter of the challenged decision and the grounds on which it was challenged. In reaching that decision he said, at paragraphs 66-68 – “66 As it seems to me the court is here concerned with deciding on which side of the dividing line the case falls between the category of decisions which have a sufficient element of public law to be subject to judicial review and those that do not, bearing in mind, also, the grounds of challenge to the decision. 67 It is not always an easy distinction to make. The word “sufficient” in relation to elements of public law is important. The fact that a public body is exercising statutory powers implies in itself an element of public law. It is a starting point. The fact that it is spending public money and preparing to dispose of interests in land again imply public elements in relation to the challenged tendering process. But are those features, together with other features relied on by the claimants, sufficient to render the process amenable to judicial review? Of course, if fraud for example were being alleged the balance would undoubtedly be tipped in favour of bringing the claim within the purview of challenge on public law grounds, but it is not. 68 It is necessary to examine the actual bases of challenge to answer the relevant question. For this reason I have found it helpful to have detailed submissions on the grounds of challenge so as to inform the decision on jurisdiction. …”[48]In R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363 a tenant claimed judicial review of a decision by her landlord to recover possession on grounds of non-payment of rent. She contended that the landlord – a housing corporation which received a subsidy from public funds, was regulated by statute and exercised some functions of a public nature – was a public authority within the meaning of section 6 of the Human Rights Act 1998 and that the act of terminating her tenancy was not a private act. Her principal ground of challenge was that the decision to evict her was a breach of her lawful expectation, and was an infringement of her Article 8 rights. A Divisional Court found in her favour, and the Court of Appeal dismissed the landlord’s appeal. At paragraph 76, Elias LJ said – “In my judgment, the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts. The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit. This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the trust’s properties.”[49]In R on the application of Bevan & Clarke LLP and others v Neath Port Talbot County Borough Council [2012] EWHC 236 (Admin) the claimants were operators of nursing homes in the area of the defendant Council. They challenged the defendant’s decision as to the rate to be paid for providers of residential accommodation. The grounds of challenge include complaints of procedural unfairness. The defendant contended that the setting of the rate was a private function, not amenable to judicial review. Beatson J (as he then was) found for the claimants on that issue. He referred to previous decisions, including Weaver. He held that the fee-setting decision was made in the context of the defendant’s public function of making arrangements for the care of those who needed it. He continued, at paragraph 48 – “The mere fact that the decision concerns the setting of a fee under a contract does not mean that it is to be characterised as a private act. In Weaver’s case Elias LJ (at [76]) distinguished acts necessarily involved in the regulation of what is a public function, which he considered to be public acts, from those which are purely incidental or supplementary to it. The decision in this case cannot be characterised as purely incidental or supplementary to the function of making arrangements for the provision of care in care homes operated by third party providers for those who qualify under the 1948 Act.”[50]Mr Speaight relies on ex parte Donn & Co, in which he submits judicial review was granted even though the basis of the claim was a relatively minor procedural failure. He also relies on Weaver and Bevan & Clarke. He submits that the LAA is a public authority providing public funding for the defence of a man who faces prosecution, and potential imprisonment, at the instance of the state. If the result of an irrational decision is that the fees offered are too low to secure representation by barristers of appropriate experience, the claimant’s Article 6 right to a fair trial in the criminal proceedings will be infringed. The process which has been followed has no real commercial element, and cannot be said to be merely incidental to the discharge of the LAA’s public function.[51]Mr Speaight further submits that the Menai Collect Ltd and Gamesa Energy UK Ltd cases, in which judicial review was refused, were cases in which the defendant public authority was exercising a power rather than performing a duty. He accepts that in the discharge of the LAA’s public function, the identity of the service-provider is not critical (though it is a matter of great concern to the claimant); but the level of service is very important, and there is an obvious relationship between the level of fees offered and the barristers who will accept a contract at that level of remuneration. It is not right to describe the process under the IFFO scheme as one of commercial negotiation. There could in principle be a process of that nature, involving advertisement and bidding; but that is not the process which is in fact in operation. What has in fact happened has been the offer of a fee which is said to take into account all relevant factors, but in relation to which the only “negotiation” has been the provision of information by counsel, with no opportunity for counsel to vary the approach taken or the rates of remuneration.[52]Mr Nicholls submits that on a correct analysis, there has been nothing more than a contractual negotiation as to the amount to be paid for the provision of services, with no public law element sufficient to make the LAA’s decision amenable to judicial review. He relies on Menai Collect Ltd and Gamesa Energy UK Ltd, noting that the facts in the first of those cases bear some similarity to the facts here, and that the decision in the second case was challenged on grounds of rationality, as is the decision here. He also relies on an observation by Lord Templeman in the decision of the Privy Council in Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 1 WLR 521:
“It does not seem likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.”
We note that in Mercury the challenge was to a decision terminating a contract of supply and that the claimant company also brought proceedings for breach of contract, breach of statutory duty and abuse of dominant position.[53]Mr Nicholls accepts that judicial review might lie in a case where it could be said that the LAA had acted in breach of its duty to provide legal representation, but says that there is no evidence in this case to show that no competent counsel would be prepared to represent the claimant at the level of fees offered. It is, he argues, simply an argument about quantum, and this court is not being asked to review the legality of the LAA’s decision but rather to review the merits and details of the decision. The public duty to provide funding for representation has been discharged, and the precise terms on which that funding has been offered, and the identity of the persons to whom the offer has been made, are merely incidental, and not amenable to judicial review.[54]In the course of his submissions on this issue, towards the end of the first day of the hearing, Mr Nicholls indicated that with the exception of the “calculator” there was no policy as to the operation of the IFFO scheme. No such indication had previously been given, which we are bound to say we found a curious feature of a case in which counsel have repeatedly asked for disclosure of any relevant policy or guidance. Mr Nicholls submits that in any event, the existence of any policy, and the disclosure of it, are immaterial because the LAA has throughout explained the terms on which it has made offers, and counsel have been able to make an informed decision as to whether to accept the offer.[55]From the cases cited to us, we derive the following principles. First, there is no universal test of when a decision will have a sufficient public law element to make it amenable to judicial review. It is a question of degree. Secondly, in deciding whether a particular impugned decision is amenable to judicial review, the court must have regard not only to the nature, context and consequences of the decision, but also to the grounds on which the decision is challenged. There is, we think, a risk of an element of circularity in this approach: to an extent, in deciding whether the decision is amenable to judicial review, the court is looking to the merits of the claim for judicial review which the claimant wishes to put forward. Nonetheless, the nature of the challenge may shed light on the extent to which the decision is of a public rather than a private nature. Thirdly, the fact that the decision is made by a public body exercising a statutory power will not in itself be a conclusive indication that there is a sufficient public law element: a government body may negotiate commercial contracts without inevitably becoming subject to judicial review. Fourthly, and conversely, the fact that the challenged decision relates to payments to be made by a public authority pursuant to a contract will not in itself be a conclusive indication that there is no sufficient public law element. Fifthly, it will be necessary to consider whether the challenged decision is one which is necessarily involved in the performance of a public function, or is merely incidental or supplementary to a public function. Sixthly, if the decision does not have a sufficient public law element to make it amenable to judicial review, the fact that the aggrieved party has no other avenue of appeal is not a reason for treating the decision as if it were public law decision.[56]Applying those principles to the present case, we regard the following factors as important. The challenged decision is as to the fee which the Lord Chancellor, acting through the LAA, is prepared to offer for the services of advocates instructed in the defence of a man facing a long and complex trial on serious charges. It is therefore a decision as to one aspect of the discharge of the Lord Chancellor’s duty to ensure that legal aid is made available in accordance with LASPO, and a decision as to the disbursement of public funds for the defence of a man accused by the state of crime and at risk of imprisonment by the state if convicted. The Lord Chancellor undoubtedly has a wide choice as to how his duty is to be discharged; but the IFFO system is the method which has been chosen in criminal cases such as that brought against the claimant. The challenged decision, in our view, cannot be described as a decision merely incidental to the public law function of providing legal aid. On the contrary, we regard it as a decision which is a necessary core element of the discharging of that function. It is moreover a decision which - if the claimant and counsel are correct in saying it was taken unlawfully, irrationally or unreasonably, or in circumstances of serious procedural unfairness - is capable of infringing the claimant’s Article 6 right to a fair trial of the criminal proceedings, when the purpose of granting legal aid is to provide for appropriate legal representation as a necessary aspect of a fair trial. Mr Nicholls accepted that if the LAA were to offer an absurdly low fee, such that no one would accept it other than perhaps a very junior barrister who lacked the necessary experience to represent the accused in a VHCC, then judicial review might lie. We cannot accept his submission that such a situation is qualitatively different from the IFFO process in this case, and that the IFFO process here is nothing more than a private contractual negotiation.[57]We regard the circumstances here as analogous to those in the Bevan & Clarke and Weaver cases. We do not think there is a close analogy with the tendering cases to which we have referred. In the tendering cases, the successful tenderer has indicated the level of remuneration which he is willing to accept, and the contract is concluded on that basis. Under the IFFO scheme, the barristers concerned can provide information and make representations, but they have no control over the manner in which the LAA determines what fees it will pay and no opportunity to vary the rates used to calculate those fees. Counsel are limited to making representations and providing information in circumstances where they have not been told (save in the most general terms) of the criteria by which the LAA calculate their offers, have not been given any detailed response to their detailed representations, and will not be remunerated for the work which they have necessarily undertaken in preparation of the criminal proceedings if ultimately they cannot reach agreement with the LAA as to the appropriate fee. It is in our view unrealistic to describe that as a contractual negotiation which lacks any sufficient public law element.[58]We therefore conclude that all aspects of the LAA’s decision are amenable to judicial review, and that the claimant is not limited to seeking judicial review on the ground of an unlawful interference with the claimant’s Article 6 rights in the criminal proceedings. Unreasonableness, irrationality and failure to publish the policy, etc[59]Mr Speaight’s principal submission, developed in the course of argument, is that the decision to make the final offer and not to offer any higher fees was irrational. He focuses on the non-disclosure of the “calculator” or of any policy or guidance as to the basis on which the LAA offer fees, and on a number of clear failures by the LAA to take account of obviously relevant factors. Mr Nicholls’ principal submission is that the evidence shows that throughout the process of negotiation, the LAA have listened to and taken into account the representations made by counsel, have explained the basis of their offers and have reasonably exercised judgment as to the fees to be offered.[60]The evidence on which the LAA rely includes two statements by Ms Burdett. She is a Finance, Performance and Governance Manager and is highly experienced. Mr Speaight made clear that he does not criticise Ms Burdett personally, his complaints being directed at the overall operation of the IFFO scheme in this case.[61]In her first witness statement, Ms Burdett described the IFFO contract which was offered in this case as a bespoke contract, meaning that the fees offered were “a departure from the figure generated by the IFFO calculator”. At paragraph 11, she explained that her second offer took into account defence material about which she did not have information when the first offer was made, including material relating to civil litigation between the claimant and some of the professionals by whom he says he was badly advised. She stated that she – “… identified 705,991 pages that I thought could reasonably be factored into the calculation. These were: 29,991 civil email files 50,000 civil case papers 220,000 further civil disclosure 100,000 accounting records 96,000 other legal files from other litigation 300,000 investor files.” Arithmetically, those figures add up to 795,991; but in the event the second offer took into account 800,000 pages, so the apparent arithmetical error may not matter. Mr Speaight however criticises other features of this explanation. 29,991 civil email files 50,000 civil case papers 220,000 further civil disclosure 100,000 accounting records 96,000 other legal files from other litigation 300,000 investor files.”[62]First, he points out that on the face of it the 29,991 civil email files have been counted as 29,991 pages. Secondly, he says that the figure of 220,000 pages of further civil disclosure is unexplained: the material available to the LAA showed that the solicitors estimated this material at approximately 2.2 million pages. Thirdly, the LAA have also failed to make any reference to the solicitors’ indication that there is a similar volume of investor files, held by Harlequin but not in electronic form, which have not been included in the figure of 300,000 pages. Fourthly, there is no reference by the LAA to the solicitors’ indication that the defence are also in possession of a Harlequin server containing emails estimated to amount to more than 62 million pages. In this last respect, we note that although no explanation was given to counsel, an internal email from Ms Burdett to colleagues on 20th October 2017 included the following indication of her view at that time:
“We should not add any more weight to defence material. The 800,000 pages were exceptional and the model is not built to take into account every server a defendant has in his possession. The emails will be, at the very least, partially duplicated within the SFO electronic material.”
[63]Mr Speaight next criticises the treatment by the LAA of the category of material referred to as the Excel spreadsheets in the possession of, and served by, the SFO. The starting point is an email of 23rd October 2017 to the LAA in which the solicitors said of this material – “You will note that some excel sheets are far too large to put into any real sensible print preview given the number of columns, tabs and line entries. Those that cannot be quantified as pages make up a large proportion of the served excel sheets. Even ignoring those that cannot be placed in a sensible print format, the same amounts to in excess of 40,000 pages and 706 hours on the min pp approach. You will note that I have ignored any duplicated documents. Those excel sheets which cannot be sensibly formatted are by and large massive documents which will require a lot of scrutiny, the same including customer units which have been allegedly resold, analysis upon which valuations are based, etc. I have attached some of the smaller of these (the others are far too large to email) to give you an idea of what we have. Given that I am having difficulty in emailing these across, perhaps it might be easier to revert back to my earlier suggestion that I send you a copy disk? (some excel documents are so large that they keep crashing my computer if I attempt to have a second excel sheet open).”[64]At paragraph 29 above we have quoted the terms in which counsel referred to this material in their letter of 21st November 2017. They contend through Mr Speaight that the appropriate figure to include in the calculation in relation to this material is 80,000 pages (in itself, they say, a conservative estimate). We note from Mr Miller’s statement that he asserts that he specifically mentioned to Ms Burdett in a telephone conversation that there were about 80,000 pages of this material; and we note that the assertion is not contradicted in Ms Burdett’s later second witness statement.[65]Despite the representations made by counsel and the solicitors, the LAA’s offer was made on the basis that the SFO had served 40,000 pages of Excel spreadsheets. In her second witness statement, Ms Burdett says that a colleague who had considered the solicitors’ email of 23rd October 2017 had “formed the view that 40,000 pages was a reasonable estimate to attribute to this material”. She points out the difficulty of quantifying, in terms of a page count, spreadsheets which do not naturally lend themselves to that approach and which may contain repetitive entries and blank cells. As to the assessment of this material made by counsel in their letter of 21st November 2017, Miss Burdett notes the reference to 80,000-120,000 pages and says that “it all seemed very imprecise”. She maintains that, having reviewed this issue and carried out some dip sampling, it remains her view that 40,000 pages is “a reasonable figure to feed into the calculation”. She goes on to suggest that the fact that the LAA have assessed the Excel material and concluded that 40,000 pages is a reasonable figure “ought to be a complete answer to this point”.[66]Mr Speaight next points to the fact that the LAA has include in its calculation only 250 hours for each of counsel in respect of preparatory work other than the perusal of documents. That, he says, was initially put forward by the LAA as an initial assumption which might be increased, but has in fact remained the same in the calculation of the final offer. In this regard, Mr Speaight makes the simple point that the VHCC contract entered into by the solicitors provides for 265 hours of consultations with counsel in a 9-month period. Even allowing for the possibility that a particular consultation may not be attended by all counsel, Mr Speaight makes the simple submission that it is irrational for the LAA to allow in the case of counsel a total number of hours which is less than the number of hours allocated specifically to consultations in the case of the solicitors. Mr Nicholls’ response is that it is unusual to include defence material in legal aid calculations, but in this case the LAA accepted the submissions of counsel as to the unusual volume of defence material and made an allowance for it in the fees offered. The LAA also points to the fact that it has funded the provision of computer software which will greatly assist counsel and the solicitors in searching and analysing the material.[67]Summarising the detailed arguments presented to us in this regard, Mr Speaight submits that the points we have mentioned show that the LAA have inputted clearly incorrect data into their calculation. They have misused their own “calculator” by inputting figures which were mistaken, and have failed to correct their errors despite having them brought to their attention. Mr Nicholls submits that the LAA have reasonably exercised their judgment in assessing the volume of material in calculating the appropriate fee under a scheme which is a deliberate departure from the previous VHCC scheme and is therefore not based on precise counting of pages.[68]Mr Speaight develops his submissions by pointing to the continuing refusal of the LAA to disclose the “calculator” or any policy or guidance as to the assessment of fees. He relies on a simple submission that where such a policy exists, it should be disclosed. He cites a dictum of Sedley LJ (in a very different factual context) in B v Secretary of State for Work and Pensions [2005] 1 WLR 3796 at paragraph 43:
“It is axiomatic in modern government that a lawful policy is necessary if an executive discretion of the significance of the one now under consideration is to be exercised, consistently from case to case but adaptably to the facts of individual cases. If – as seems to be the situation here – such a policy has been formulated and is regularly used by officials, it is the antithesis of good government to keep it in a departmental drawer.”
Mr Speaight also relies on R (Lumba) v Secretary of State for the Home Department [2012] 1AC 245, in which Lord Dyson (again in a very different factual context) referred at paragraphs 34 and 35 to the requirement of a transparent statement by the executive of the circumstances in which broad statutory criteria will be exercised, and to “a correlative right to know what [the] currently existing policy is, so that the individual can make relevant representations in relation to it.”[69]As we have indicated, Mr Nicholls’ instructions were that, apart from the “calculator”, there was no policy or guidance and therefore nothing to disclose. As to the “calculator”, he submits that the LAA is under no obligation to disclose it. The important point, he submits, is that the LAA has engaged with counsel throughout the fee negotiation in an open and transparent process: counsel have been made aware of what the LAA has done, and have been able to challenge it.[70]We of course accept that Mr Nicholls has faithfully relayed his instructions to us. We have already expressed our surprise that the simple proposition that there is no policy to disclose only emerged in the course of the hearing. We add the further observations that it is surprising that there should be no guidance at all as to how officials (however experienced) should assess what sums of public money are to be disbursed, and that the denial of the existence of any policy or guidance other than the “calculator” is difficult to reconcile with a number of references by the LAA (for example, in the internal email quoted in paragraph 62 above) to inputting pages into “the model”, or with the reference in one of Ms Burdett’s emails to a “rule of thumb”.[71]We have reflected on these submissions in the round, because it seems to us that it is necessary to have regard to the combined allegations of irrationality in incorrect data being used by the LAA in their calculations, and irrationality, lack of transparency and clarity and/or procedural unfairness in the non-disclosure of the “calculator”. In relation to the public law duty of transparency and clarity we have had regard, in addition to the cases mentioned by Mr Speaight and referred to at paragraph 68 above, to R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin), especially at paragraph 65; R (Oboh) v Secretary of State for the Home Department [2015] EWCA Civ 514, especially at paragraphs 28-29; R (Richmond Pharmacology Ltd) v The Health Research Authority [2015] EWHC 2238 (Admin), especially at paragraphs 48 and 86; and R (on the application of Justice for Health Ltd) v Secretary of State for Health [2016] EWHC 2338 (Admin), especially at paragraph 148.[72]As to the LAA having made material and substantial errors in the basis of their calculations, we found Mr Speaight’s submissions (summarised in paragraph 62 above) compelling. It is in our judgment clear that errors were made. No satisfactory explanation has been put forward by the LAA, and no attempt has been made to correct them. We take the same view about the decision to allow only 40,000 pages for the SFO’s disclosed Excel spreadsheets when both the solicitors and counsel had made it perfectly clear that there were at least 80,000 pages, and - moreover – that many of those which were not susceptible of a page count by use of the print preview function are very large documents. It is in our view clear, from a reading of the correspondence to which we were referred in this regard, that a simple but very important error was made by the LAA in assessing this material. We are wholly unpersuaded by the attempt to rationalise this as an exercise of judgment rather than (as we find it to be) a refusal to acknowledge and correct an error. We would add that in any event caution needs to be exercised when taking account of the fact that many cells in the spreadsheets are blank: it cannot simply be assumed that all blank cells can safely be ignored, for in the context of a fraud case, a blank cell in a spreadsheet may be highly significant.[73]We readily accept, as general propositions, the submissions of Mr Nicholls to the effect that the calculation of fees under the IFFO scheme does involve the making of judgments as to the appropriate remuneration in cases involving vast quantities of documents of varying degrees of relevance. We also readily accept the observations of HH Judge Loraine-Smith (understandably relied upon by the LAA) as to the need for focused preparation by lawyers assisted by a lay client (the claimant) who is in the best position to identify the material relevant to his defence.[74]It is however unclear to us to what extent the assessment of fees under the IFFO scheme is a mechanistic exercise, involving a multiplication of the number of pages (however assessed) by the time allowed per page, and to what extent it is an exercise of judgment taking into account all the circumstances of the case. The reason why this is unclear is that the LAA have declined to disclose the “calculator”. We note from the witness statement of Ms Henry QC that at the hearing in the Crown Court on 10th November 2017 the representatives of the LAA disclosed the existence of a “calculator” but said that they were not permitted to disclose it.[75]We find the stance which the LAA has taken in this regard to be untenable. It is apparent from the evidence that the inputting of data into the “calculator” is a very important part of the LAA’s assessment of fees: indeed, when one tries to carry out the exercise of comparing an increased offer with the preceding offer in order to see what difference the addition of further material has made to the calculation, it appears that the use of the “calculator” may be the sole determinant. We cannot understand why the LAA declines to disclose it. Under the graduated fee scheme and VHCC scheme, all parties know how the fees are calculated. Ms Henry in her witness statement refers to the fact that LAA guidance is made available in respect of all other LAA fee schemes. We recognise of course that the IFFO scheme is a different approach, which has advantages for both the LAA and the advocates. But that does not begin to justify the refusal to disclose such an important feature of the scheme – particularly when the LAA surprisingly asserts that there is no other policy, guidance or protocol by which its officials are directed or guided in making their assessments. The LAA, in our judgment, plainly owes a duty of transparency and clarity in relation to the operation of the “calculator”. Even without that duty, we would have expected the LAA to want advocates to know the basis on which their fees were being assessed in VHCCs, not to keep it a secret: it would surely be advantageous to the LAA, in its negotiations with advocates, to be able to demonstrate why and how the use of the “calculator” has led to a particular fee offer. Similarly, we recognise that the use of the “calculator” is only part of the process of assessment; but that also does not begin to justify the non-disclosure of what is plainly a very important aspect of the process. As to the assertion that the “calculator” includes confidential information, to which we have referred in paragraph 33 above, we can see no reason why any genuinely confidential information as to the identities of particular persons could not be redacted.[76]Without disclosure of the “calculator”, it seems to us that references by the LAA to its having taken account of the weight and complexity of the case are of very limited value, because there is no transparency about basic matters such as whether the “calculator” itself includes some form of weighting to reflect the differing complexity of cases dealt with under the IFFO scheme, or whether the “calculator” produces the same figures whatever the particular features of the case and must therefore be supplemented by an exercise of judgment at a later stage in the process of calculation. An indication of the importance of this lack of transparency was given in the course of submissions, when Mr Nicholls, in making a point (also made by the LAA in correspondence) about the limits to the amount of work which counsel could realistically do before and during the trial, made an estimate based on a working week of 37.5 hours. In the experience of this court, that would be a substantial under-estimate of the amount of work undertaken by defence counsel in criminal cases such as that which the claimant faces. Because the “calculator” has not been disclosed, and because the LAA deny the existence of any other policy, guidance or protocol, neither counsel nor this court has any way of knowing whether a similar substantial under-estimate has been used by the LAA at any point in its assessment of the fees in this case.[77]It is in our view no answer to these points to assert that counsel have been kept fully informed of the LAA’s explanations for its offers, because we do not accept that the assertion is correct. No doubt account has been taken of counsel’s representations, and no doubt Ms Burdett and her colleagues have done their conscientious best to assess the appropriate fees; but the absence of any detailed explanation, sufficient to enable counsel to know what points they need to address, is starkly illustrated by the response of the LAA to the representations made by counsel in their letter of 21st November 2017. That letter was 13 pages in length, and contained much detail as to the time needed for the work which counsel believe to be necessary. The LAA’s response on 12th December 2017 thanked counsel “for the additional information you have provided”, and made an increased offer, but only explained that increased offer to the very limited extent which we have indicated in paragraph 31 above. None of the specific points made by counsel was explicitly addressed. In those circumstances, it is in our view impossible for the LAA to justify non-disclosure of the “calculator” on the basis that all necessary information has already been provided.[78]We conclude 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. We further conclude that in the respects identified by Mr Speaight there have been significant errors in the data inputted into the LAA’s calculation, and that there has been no reasonable explanation for those errors or for the failure to correct them when drawn to the LAA’s attention. In the absence of any disclosure of the LAA’s method of calculation, we find it impossible to view those errors as insignificant or as being corrected in practice by the exercise of judgment based on experience. On the contrary, it seemed to us during the hearing that there was an unwillingness on the part of the LAA to accept that errors had clearly been made, and that there could be no rational basis for declining to correct those errors and make a commensurate increase in the final offer. In the result, the operation of the IFFO scheme in this case has failed to provide sufficient and reasonable funds for the defence of the claimant in the criminal proceedings.[79]We should add that we do not accept Mr Nicholls’s submission that the court is being led into a minute re-calculation of the offer rather than an assessment of the lawfulness of the LAA’s conduct. As is recognised by the LAA in the witness statement of Ms Weisman, a Senior Legal Adviser in the Criminal Cases Unit, the public duty of the LAA is “to provide sufficient and reasonable funds for the preparation of the defence”. The duty is described in similar terms by Mr Heard in the passage which we have quoted at paragraph 19 above. In complex VHCCs which involve vast quantities of documents the assessment of what is sufficient and reasonable is not an easy task, and will inevitably involve the exercise of judgment. But an assessment which fails to correct demonstrable, and demonstrated, errors cannot result in the provision of sufficient and reasonable funds. It is not enough to say (as the LAA have repeatedly done in correspondence and in their evidence) that the fees offered to counsel in this case are greater than the fees paid in any other case under the IFFO scheme: the criminal case against the claimant has the highly unusual (if not unique) feature that it is the defence rather than the prosecution who are in possession of the bulk of the relevant material, and it should therefore come as no surprise if the workload for the defence team is greater than in other cases. A further consequence of this unusual feature is that there is no realistic prospect of any uplift ever being applied to the fees. That, in our view, makes it all the more important that any identified error in the assessment of the defence material should be corrected, or at the very least shown convincingly to be immaterial, if the IFFO scheme is to operate fairly and rationally. Illegality[80]We can deal briefly with this aspect of the claimant’s case, which was not strenuously pursued in Mr Speaight’s submissions. The claimant contends that the LAA’s final offer prevents or prohibits counsel from undertaking all the work necessary to discharge their professional duties to their lay client, the claimant. We cannot accept that submission. The fact that the claimant’s Article 6 right to a fair trial in the criminal proceedings may be infringed if his case is not properly prepared is, as we have said above, a relevant factor in our decision that the LAA’s decision involves a sufficient public law element to be amenable to judicial review. But on the pleaded ground of illegality, we accept Mr Nicholls’ submissions that Article 6 does not give an accused person an unqualified right to select the advocates of his choice, and that there is no evidence on which this court could find that no competent advocates would be willing to take the case at the fees offered by the LAA. Summary of our conclusions[81]For the reasons which we have given, we find that the decision of the LAA to offer the fees stated in its final offer is amenable to judicial review. We grant permission on all grounds, and we find that the decision was irrational as a result of a combination of identified but uncorrected errors on the part of the LAA, and a breach of the duty of transparency and clarity and/or procedural unfairness in the non-disclosure of the “calculator”. We do not find that the decision involved any illegality.[82]In the result the decision of 12th December 2017 to make the final offer of fees contained in the LAA’s letter of that date must be set aside. We direct that the decision be re-made, taking into account the errors made in the previous offers which have been identified by counsel and in the submissions to this court. We further direct that the LAA disclose to the claimant and to counsel the “calculator” and any policy, guidance or protocol as to the use of the “calculator” and/or as to any other aspect of the operation of the IFFO scheme.

Cited in 2 later judgments