The Legal Aid Agency breached its duty to be transparent and clear when it failed to disclose its ‘calculator’ for assessing counsel’s fees for what is expected to be a complex fraud trial, the High Court has ruled.
The claimant in the case has been charged by the Serious Fraud Office with fraud allegations and pleaded not guilty last year. He faces what is expected to be a long and complex trial.
He sought judicial review of the Legal Aid Agency [“LAA”] final fee offer (to counsel of his choice), in relation to counsel’s fees payable under the Interim Fixed Fee Offer regime [“IFFO”], whereby counsel and the LAA had been unable to agree on remuneration.
The Interested Parties, defence counsel, Annette Henry QC and David Miller, were unwavering in their support of the application and instrumental in providing the grounds for it in order to comply with their professional obligations to the defendant and ensure his rights to a fair trial were not compromised. They had made representations to the LAA for better part of a year regarding the necessary work required in the case to discharge their professional duties and sought transparency in the LAA calculation of fees, declining offers which failed to make adequate provision for the work which would have to be carried out.
The criminal case to which the legal aid related is described as “highly unusual if not unique” with literally millions of pages of defence evidence to be considered by defence counsel.
The LAA accepted the existence of a ‘calculator’ used to determine fees but declined it’s disclosure, making final fee offers in December 2017.
Lord Justice Holroyde gave the lead judgement during the case of Ames v The Lord Chancellor in which the Court could not understand why the LAA declined to disclose the calculator. He said that:
“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 [very high cost cases], 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.”
The Court found that there were 'significant errors' in the data inputted into the LAA calculations regarding the necessary work in making any fee offers.
The High Court has therefore ordered the agency to disclose the ‘calculator’, setting aside the offer made in December 2017.
“The difficulties in trying to prepare a crown court case of this size and complexity with counsel acting pro bono (as their proposed contract did not meet the professional requirements of the case) cannot be underestimated. It is vital to have counsel’s input at all stages of VHCC cases.
"This action for Judicial Review was brought to ensure that the fundamental rights of the claimant to defend himself properly were not compromised.
"We are delighted at the outcome. We hope that the decision provides much needed clarity and transparency in the IFFO contracting process moving forward for all parties concerned, and in the interests of justice generally.
"We thank counsel for their continued support given to us on a pro bono basis to date and in bringing the claim for judicial review. It is only by solicitors and barristers working together in this way on the most serious cases that ensures a system of justice that is regarded as the best in the world."
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The decision in this case is far reaching across all VHCC’s whereby there will now be more clarity on how the fee offer is determined for counsel’s fees by the LAA.