“Firm are very positive and professional when dealing with LAA and very receptive to involvement in any LAA or MoJ pilots and initiatives. They want to be a leading player in the legal aid market. It’s also clear that the advice given on their files is of a high standard. They are very experienced in mental health and are prepared to go the extra mile for the large client base they have built up in this area.”
“The [Official Investigation] aims to determine the following: - Whether claims for Mental Health Tribunals have been made accurately - If claims have not been made accurately, to determine the circumstances which have led to claims not being accurately made and explanation of these circumstances - To determine whether files listed in Annex A exist and to obtain them if they do (you must take all steps to satisfy the investigators that the files exist) - To determine whether other periods of time are affected by the problem and to what extent”
“completed files would be boxed up and a list of all the files attached to the front of the box. The boxes are then archived in the basement of John Street for up to a month whilst the billing is being processed and submitted. The boxes are then archived off site. Each box is category specific so that Mental Health files will only be stored in a Mental Health box. A spreadsheet is maintained which tracks which box a file is stored in and where that particular box is, either in John Street, or off-site archive.”
“We do not know why the HMCTS have no records of these files. The LAA has provided Blavo with a set of statistics. These statistics are from the HMCTS, not the LAA. We have no idea how this data was compiled, what procedures the HMCTS has of recording data, how can we cross reference this data? … We need time to verify the data that you have provided. We are conducting our own private checks as to how this data was compiled. The LAA is using third party data and assuming it to be robust and correct. We cannot assume that this data is correct as data can be corrupted or misreported …. If it turns out that the data is correct than (sic) the only explanation would be that the files have been claimed incorrectly. This does not mean that the clients do not exist or that they were not clients of Blavo. Perhaps a claims correction will be required but the firm contests that this would mean a block nil assessment for these files as ... the firm has provided advice to these clients.”
“The office was a mess. There had been a significant flood and there seemed to be a lot of damage. The carpets throughout the office were soaked with water, files were thrown all over the floors, contents of shelves and cabinet drawers had been emptied onto the floor and shredders emptied and scattered.”
“I am also aware anecdotally of extensive problems experienced by firms in using the LAA’s CWA reporting systems as these were widely reported in the legal press.”
“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities.”
“Some things are inherently a great deal less likely than others. The more unlikely something is, the more cogent must be the evidence required to persuade the decisionmaker that it has indeed happened … Thus, for example, most parents do not sexually abuse their children. Cogent evidence is therefore required to establish that sexual abuse is more likely than not to have happened. But once it is clear that such abuse has happened, the threshold of incredulity has been surmounted …”
“1. In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. 2. If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. 3. There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. 4. If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
“on aspects where the evidence points in a direction against Lloyd’s in an area which could have been dealt with by Mr Randall the judge should have drawn an adverse inference from Lloyd’s failure to call Mr Randall to deal with it. This does not mean that any allegation that the names make against Mr Randall must be accepted because he did not give evidence. It simply means that where the evidence points in a certain direction, an adverse inference can be drawn from a failure to call a witness to deal with it.”
“34. We well understand how the Recorder’s suspicions were aroused. However, in the absence of good reason a Judge ought to be extremely cautious before making conclusive findings of fraud unless the person concerned has at least had the opportunity to give evidence to rebut the allegations. This is a matter of elementary fairness. In Vogon International Ltd v. The Serious Fraud Office[2004] EWCA Civ 104 at [29], May LJ (with whom Lord Phillips MR and Jonathan Parker LJ agreed) said, ‘It is, I regret to say, elementary common fairness that neither parties to the litigation, their counsel nor judges should make serious imputations or findings in any litigation when the person concerned against whom such imputations or findings are made have (sic) not been given a proper opportunity of dealing with the imputations and defending themselves.’ 35. This is not only required because of fairness to the party affected but also to avoid the court falling into error- see for instance Co-operative Group (CWS)Ltd v. International Computers[2003] EWCA Civ 1955 at [38]. As Megarry J memorably said in John v. Rees[1970] Ch 345 , 402, ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were answered; of inexplicable conduct, which was fully explained… Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.’” ‘It is, I regret to say, elementary common fairness that neither parties to the litigation, their counsel nor judges should make serious imputations or findings in any litigation when the person concerned against whom such imputations or findings are made have (sic) not been given a proper opportunity of dealing with the imputations and defending themselves.’ ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were answered; of inexplicable conduct, which was fully explained… Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.’”
“For the avoidance of doubt and without limiting this Clause 25, [the LAA]’s right to terminate this Contract in respect of your material or persistent breach is set out in Clause 24. In addition, we may serve a notice on you terminating this Contract on the date specified in the notice in any of the following circumstances: (a) you have committed a Fundamental Breach; … (c) we receive a Report and reasonably consider that termination is required to protect Clients or us from possible serious harm or to protect public funds or Clients’ interests; …”
“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’, to quote Lord Hoffmann in Chartbrook Ltd v. Persimmon Homes Ltd [2009] A.C. 1101, para. 14. And it does so by focussing on the meaning of the relevant words …. in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”
“… the clearer the natural meaning the more difficult it is to justify departing from it.”
“In view of the lack of co-operation with the Official Investigation and the evidence of unsupported claims I recommend termination of all of Blavo & Co.’s legal aid contracts pursuant to clause 25.4(c) of the contract standard terms as fraud at an organisational level cannot be discounted.”
“On 10 August we requested 1,000 files from the firm. To date only four have been received. The decision as to whether this is sufficient to terminate is mine and I am intending to terminate on Wednesday 30 September. Amana is preparing the SRA who we would wish to intervene shortly after to protect existing clients who will need to continue to receive advice … I am assuming that you will have no objections but if you do please let me know by mid-day 30 September.”
“I was very much aware at the time (as I am with all decisions surrounding terminating a supplier’s contract with the LAA) of the potential knock-on effect on a supplier’s trading position and that of its employees. It is not a decision that is ever taken lightly.”
“If the report had produced new facts, I would have considered these. If the report led in a different direction, I would have been open to changing the decision. At that point, it confirmed my conclusion that there had been a material and persistent breach of the Contract by the Company that entitled the LAA to terminate the Contract in order to protect the LAA from possible serious harm and to protect public funds. I also considered that the Company’s failure to supply the information and files requested by the Official Investigation (and so demonstrate that the sums it had claimed from the LAA for matters listed on Annex A were true claims) constituted a fundamental breach of Contract.”
“On the evidence available therefore it appears that you have claimed for attending thousands of Mental Health Tribunals which have not taken place. You have not provided any explanation for why you have claimed for attendance at thousands of Mental Health Tribunals which HMCTS have no record of. There are grave concerns in relation to the potential fabrication of Mental Health hearings and clients and the sums of money involved. In relation to the files for the Contract Compliance Audit referred to above you will be aware that the Contract allows us to extrapolate the findings over subsequent claims. As there was no record of an application or a tribunal in 42 out of 49 files reviewed the sums payable to you were assessed as nil in 42 instances. An extrapolation would result in circa£4 million being repayable to us. In addition, on10 August 2015 , as part of the Official Investigation we requested 1,000 reported Matter files for checking. To date we have received only four files. No satisfactory reason has been provided for this failure to co-operate with the Official Investigation. The Report I have received raises the possibility of fraud on your behalf because of the difference between the claims reported by you and numbers recorded by HMCTS. Fraud is also suspected because of the unexplained failure to provide the 1,000 files for checking and a request for files from a 12-month period detailed below. You have not confirmed the availability of these files. On the face of things, the possible fraud appears very widespread and I cannot have confidence that these actions have not taken place at an organisational level. Until we have sight of the files requested the LAA has no way of knowing that the issues are not applicable throughout your organisation. In these circumstances all your Contracts are affected: your failure to co-operate and to comply with your contractual obligations is resulting in a lack of assurance that the issues do not affect all your Contracts. Within the meaning of Clause 25.4(c) I reasonably consider that termination of the Contracts is required to protect the LAA from possible serious harm and to protect public funds. Your Contracts are accordingly terminated under Clause 25.4(c) of the Contract Standard Terms which apply to (each of) the Contracts.”
“Records maintained pursuant to Clause 8.3 must be sufficient: (a) to verify and demonstrate performance of and compliance with your obligations under this Contract; (b) to verify and demonstrate the accuracy of information supplied by you in respect of Contract Work; (c) to enable Assessments to be performed; (d) to verify and demonstrate the accuracy of all information supplied by you under or in connection with Clause 14; (e) to facilitate an Official Investigation; and (f) for such other purposes as we reasonably consider necessary in connection with our statutory duties or functions.”
“In particular, you have failed to: - prove that certain files exist; - produce a full list of all staff employed between1 April 2012 and the present; - confirm and identify which staff are paid a salary and which are paid commission; - provide written confirmation of who within your organisation is responsible for billing; - to provide written confirmation of who within your organisation is responsible for reviewing and submitting CWA submissions; - provide a satisfactory written explanation for why HMCTS have no record of certain of the tribunal hearings on which your Claims are based; - produce a list of all consultants used in Mental Health work since1 April 2012 and the cases/Matters they worked on; - provide a list of all live Mental Health cases/Matters you have identifying the office and fee earner; - provide a list of all files stored by Mr Chaudrhury (sic) for you; - provide a signed copy of the interview notes for John Blavo taken on the11 August 2015 ; - provide a written explanation from you as to how the fraud procedures in the Office Manual operate in practice; and - provide a full list of all files in storage/archive, including box references, dates sent to storage and file names.”
“We may, therefore, terminate the Contract as a consequence of your failure to cooperate with the Official Investigation which is a breach of Clause 9.6 of the Contract Standard Terms. The Contract is hereby additionally terminated for Fundamental Breach from1 October 2015 . This termination is proportionate to the circumstances as there has been a serious failure to co-operate in the Official Investigation. Clients and/or public funds are at risk of harm – see Clause 9.10 of the Contract Standard Terms.”
“We may issue a notice of Assessment or notice of a debt due to us in connection with Contract Work, which has the effect of making the amount specified in it payable to us, if: (a) we have made an ‘overpayment or mispayment’ to you; or (b) in respect of a Matter or case, you have breached this Contract and, as a result of the breach, we can demonstrate that we have incurred (or will incur) a financial loss; or (c) where you undertake civil Contract Work, you have failed to submit a Claim, as required by this Contract, after having received a Payment on Account from us in respect of the relevant Matter or case.”
“Subject to the provisions of this Contract, the suspension or ending of this Contract is without prejudice to any of your or our accrued rights (including our rights to Assess your Claims and to recover any overpayments to you and your rights to recover in respect of any underpayments by us). This includes Clauses 26.12 to 26.19.”
“The appeal must be made in writing (setting out full reasons) within 28 days of notification of the Assessment decision, and must be accompanied by the file. We will only extend the 28-day time limit where you have requested an extension for good reason within 21 days. Any extension of the time limit will be for a maximum of a further 14 days.”
“Failure to comply with any of the requirements set out in paragraph 6.68 means that you accept our decision and lose your right to dispute it.”
“Where the ‘overpayment or mispayment’ provisions of this clause 14 apply because of a reduction of a Claim on Assessment then, unless we consider that there is a risk to public funds, we will not seek repayment until any appeal against the (initial) Assessment has concluded.”
“1. The Guarantors unconditionally and irrevocably guarantee that the Provider (i) shall perform all of its obligations under the Contract(s) in accordance with the terms of such Contract(s) and (ii) will pay all monies due to the Lord Chancellor under or in respect of the Contract(s). 2.
“With regard to making good to the creditor payments of instalments by the principal debtor there are at least two possible forms of agreement. A person might undertake no more than that if the principal debtor fails to pay any instalment he will pay it. That would be a conditional agreement. There would be no prestable obligation unless and until the debtor failed to pay. There would then on the debtor’s failure arise an obligation to pay. If for any reason the debtor ceased to have any obligation to pay the instalment on the due date then he could not fail to pay it on that date. The condition attached to the undertaking would never be purified and the subsidiary obligation would never arise. On the other hand, the guarantor’s obligation might be of a different kind. He might undertake that the principal debtor will carry out his contract. Then if at any time and for any reason the principal debtor acts or fails to act as required by his contract, he not only breaks his own contract but he also puts the guarantor in breach of his contract of guarantee. Then the creditor can sue the guarantor, not for the unpaid instalment but for damages. His contract being that the principal debtor would carry out the principal contract, the damages payable by the guarantor must then be the loss suffered by the creditor due to the principal debtor having failed to do what the guarantor undertook that he would do.”
“It follows from the legal nature of the obligation of the guarantor to which a contract of guarantee gives rise that it is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something; and that the creditor’s remedy for the guarantor’s failure to perform it lies in damages for breach of contract only. That this was so, even where the debtor’s own obligation that was the subject of the guarantee was to pay a sum of money, is clear from the fact that formerly the form of action against the guarantor which was available to the creditor was in special assumpsit and not indebitatus assumpsit: Minesv. Sculthorpe (1809) 2 Camp 215.”
“The principal debtor might entirely neglect to defend the surety properly in the arbitration; he might make admissions of various things which would be binding as against him, but which would not, in the absence of agreement, be binding as against the surety.”