R (Ames) v The Lord Chancellor  EWHC 2250 (Admin) was brought by a criminal defendant who faced a heavy fraud trial. His barristers of choice were Annette Henry QC and David Miller; they supported the action as Interested Parties. Officials of the Legal Aid Agency (“LAA”) entered into discussions with these barristers and made a series of increasing offers under the Interim Fixed Fee Offer (“IFFO”) scheme. Each of these was rejected on the ground of failure to make adequate provision for the work which would have to be carried out. The LAA officials then declined to make any further offer. The criminal case solicitors, Cartwright King, acted pro bono in launching Administrative Court proceedings.
Part of the complaint was that the LAA not only made mistakes in its assessment but declined to correct them when they were pointed out. For example, the final offer was stated to be based on 29,991 pages of certain defence material which would have to be read by defence counsel, whereas the documents, as LAA, in fact, knew, comprised 29,991 files: it was implausible that each file would contain only 1 page. A second instance was that the LAA was willing to take account of only 40,000 pages of Excel spreadsheets served by the SFO, despite it being expressly drawn to their attention that the correct figure was more than double. A third complaint was that the LAA would allow only 250 hours of preparatory work by counsel other than on the perusal of documents, despite the LAA allowing the solicitors 265 hours for consultations alone: bearing in mind that, by their nature, counsel would be present in consultations, and that there would be bound to be much other preparatory work, there was again no reasonable explanation for this stance.
The figures mentioned above, including the almost mind-boggling number of pages to be considered by counsel, show this to have been an exceptional case. Indeed, the court described the case as “highly unusual if not unique”. The defence had possession and control of the entire business’ documentation; the experienced Crown Court judge, Judge Loraine-Smith, at a directions hearing anticipated the possibility that the defence case at trial would be more extensive than the prosecution’s. Therefore, no generalisation can be extrapolated as to the actual figures for fees (in a scheme which is generally based on prosecution rather than defence material) which may be allowable in other cases.
But the readiness of the court to consider going so far as to grant judicial review for the kind of errors by officials in Ames could certainly be an encouraging precedent for barristers facing unbending officials in future cases. The judgment of the court of Holroyde LJ and Green J said: “... an assessment which fails to correct demonstrable, and demonstrated, errors cannot result in the provision of sufficient and reasonable funds”.
Even more valuable for the future, however, may be the Court’s order that the LAA disclose the internal policy document setting out the process by which IFFO offers are calculated. The Bar Council had requested sight of this in the past, but disclosure of it has always been refused. Now the Court has held that the withholding of this internal policy document breaches the LAA’s duty of transparency and clarity; and has ordered that it be disclosed.
Report by ANTHONY SPEAIGHT Q.C. counsel who acted for the Claimant and the barristers who were Interested Parties