Judge: Holroyd LJ and Green J
Citation:  EWHC 2250 (Admin)
In a Very High Cost (Crime) Case (VHCC), the decision of the LAA to offer the fees stated in its final offer was amenable to judicial review. The decision was held to be irrational due to a combination of identified but uncorrected errors by the LAA and a failure to disclose the LAA’s calculator as it was a breach of the Agency’s duty of transparency and clarity.
In relation to a “very high cost (crime) case”, the Claimant, who had been granted public funding to defend charges of fraud, sought permission to judicially review the final offer made by the Legal Aid Agency in respect of Counsel’s fees. The Legal Aid Agency had made an offer in respect of the fees which was rejected, it being argued that the offer was irrational and / or unreasonable, and that the Agency had acted unlawfully by failing to disclose the “calculator” used to calculate the offer. The Administrative Court held that the challenge decision had a sufficient public law element to make it amenable to judicial review. All aspects of the Agency’s decision were amenable to judicial review. The failure to disclose the “calculator” was a breach of the Agency’s duty of transparency and clarity. Its failure to do so had introduced serious procedural unfairness into the operation of the Interim Fixed Fee Offer (IFFO) Scheme in the case. There had been significant errors in the data used in the calculation. There was no reasonable explanation either for the errors or for the failure to correct them. On the facts, the operation of the IFFO Scheme had failed to provide sufficient and reasonable funds for the Claimant’s defence. The Claimant had also asserted that the Agency had acted illegally on the basis that failure to make a higher offer would result in the Claimant having been denied his right to a fair trial in breach of ECHR Article 6. That aspect of the application did not succeed.