England and Wales High Court of Justice

[هيثم الفقى]

Duncan & Anor, R (on the application of) v Legal Aid Board & Anor, Court of Appeal - Administrative Court, February 16, 2000, [2000] EWHC Admin 294




Case No: CO/4807/99

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 16th February 2000

B e f o r e :

LORD JUSTICE ROCH
LORD JUSTICE BROOKE
and
MR JUSTICE GAGE
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Mr Richard Gordon QC, Jenni Richards & Paul Bowen (instructed by Mackintosh Duncan for the Applicants)
Mr Nigel Pleming QC & Beverley Lang (instructed by the Legal Aid Board for the First Respondents)
Jonathan Crow (instructed by the Treasury Solicitor for the Second Respondent)



Judgment
As Approved by the Court

Crown Copyright ©
Index

Part Title Para Nos
1 An overview of the issues in the case 3 - 17
2 The history of legal aid before the 1988 Act 18 - 31
3 The 1988 Act and its aftermath 32 - 51
4 The need for reform: the advantages and challenges of controlled contracts 52 - 77
5 Certificated legal aid 77 - 86
6 The allocation of funds and the bidding system 87 - 111
7 The firm of Mackintosh Duncan and its contract award 112 - 130
8 The Burgundy book 131 - 135
9 Mackintosh Duncan's concerns about the new scheme 136 - 175
10 Prescribed panels 176 - 183
11 The new controls over travelling expenses 184 - 205
12 Practical problems facing firms under the new scheme 206 - 219
13 The meeting on 20th December and the amended contract offer 220 - 250
14 The Board's discretions and the need for transparency 251 - 302
15 The new generic franchise categories, their purpose and their scope 303 - 324
16 Particular franchise categories: (i) mental health 325 - 373
17 Particular franchise categories: (ii) community care 374 - 394
18 Particular franchise categories: (iii) employment 395 - 398
19 Particular franchise categories: (iv) immigration 399 - 413
20 The Law Society and the Legal Aid Practitioners' Group 414 - 430
21 The complaints by other practitioners 431 - 443
22 The applicants' submissions: (i) The common law right of access to the courts 444 - 468
23 The applicants' submissions: (ii) The right conferred by section 32(1) of the Legal Aid Act 1988 469 - 477
24 The applicants' submissions: (iii) the treatment of the not for profit sector 478 - 485
25 The applicants' submissions: (iv) Wednesbury irrationality 486 - 547
26 The court's conclusions 548 - 584

Lord Justice Brooke:
This is the judgment of the court.
There is before the court an application by Ian Duncan and Nicola Mackintosh for permission to apply for judicial review. They are the partners in a small firm of solicitors who have been practising under the name of Mackintosh Duncan since 1st July 1999 from office premises in Borough High Street, Southwark. The respondents to this application are the Legal Aid Board ("the Board") and the Lord Chancellor. At one level the applicants are challenging the legal validity of the whole new scheme for legal advice and assistance and free representation at mental health review tribunals which was introduced by the Board under powers given to it by the Lord Chancellor and with the authority of both Houses of Parliament with effect from 1st January 2000. At this level the applicants also challenge the legal validity of two directions made during December 1999 by the Lord Chancellor under Section 4(4) of the Legal Aid Act 1988 ("the 1988 Act") and one statutory instrument made by him in the same month, following positive resolutions by each House of Parliament, under Section 8(3) of the Act. At a lower level the applicants challenge the legal validity of the new scheme because they castigate as irrational certain aspects of the way in which the Board has planned and implemented it, particularly in relation to the way in which it affects their firm and their clients or potential clients. Their application is supported by the Law Society. Although the Society has not formally intervened, there are in evidence two statements by its President, Mr Robert Sayer, nearly 40 letters and two affidavits from firms of solicitors or other interested agencies who are worried about the way the scheme will affect their staff and their service to their clients, and a large number of documents concerned with the scheme and the events that led up to its introduction. On 13th December 1999 Latham J refused the applicants interim relief. He directed that their application for permission be listed for hearing before a Divisional Court on 12th January 2000, with the substantive hearing to follow if permission was granted. On 12th January we granted the Board and the Lord Chancellor a short adjournment, for reasons we ...