31/01/2008

LSC Judicial Review Mk 2

The Law Society is (just about) to file the second Judicial Review application of the Civil legal aid Unified Contract, this time arguing that, following the Court of Appeal judgment in the first JR, the LSC has to address the illegality of the current fixed fee scheme having been introduced under the unlawful unilateral amendment clause.

The LSC denies that the fees were introduced under the clause but has failed to adequately explain under what other provision they were introduced.

The LSC has already announced it is withdrawing the Unified Contract, apparently now suggesting a new contract in October 2008 (LSC response letter [PDF]), but if the Law Society were to win on this JR, it would really be a devastating end to the whole unified contract project.

Some areas of civil legal aid are worse hit by the fixed fees than others, with family and mental health probably worst off, but the rates do also hit housing and welfare practices pretty badly. One simply cannot do a proper homeless s.202 review on £171, at least not here in the South East.

If the Law Society win, what then? The LSC response suggests a return to the previous fee regime, pro tem. Of course, they also threaten that any payments made under the fixed fee scheme would have to be recovered as ultra vires. We shall see…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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