I need to make the obvious pun about the Adams family but the monsters in this particular case were really played collectively by Lambeth. The case is R on the application of Janet Adams v The Commission for Local Administration for England. This is essentially a very negative decision on costs in which Pierce Glynn got little or no thanks by way of remuneration for a lengthy battle on behalf of the Adams sisters for suitable accommodation. Janet and Joan Adams are two sisters who have various and significant health problems. Janet is Joan’s primary carer. Neither are able to work and they live on a very restricted income.
Pierce Glynn acted for them since 2007 to challenge their low priority for housing under Lambeth’s allocation scheme and ultimately assisted them with a complaint to the Commission for Local Administration in England (the LGO) in February 2009.
The LGO indicated in May 2009 that her initial view was that there had been maladministration, that compensation was a likely recommendation and payment of reasonable legal costs would also be considered. She also noted that there was an immediate need for the Adams sisters to be housed in suitable accommodation and Lambeth was asked to consider taking steps to ensure this happened quickly. This they did and the sisters were allocated accommodation in June 2009.
In June 2009 the LGO set out her provisional view in a letter to Pierce Glynn that there had been maladministration including delay by Lambeth. She indicated she would consider it reasonable to expect Lambeth to pay not only compensation to the sisters but also their reasonable legal costs associated with pursuing the complaint with the Council and with the Ombudsman.
There followed some negotiation about reasonable compensation and costs and Pierce Glynn submitted two costs schedules; one at market rates and one at legal aid rates which was for just over £3,000. They pointed out that they had assisted the Adams sisters under the Legal Help Scheme and as such this has been done at a significant loss to the firm. During the following correspondence Pierce Glynn understandably posed the question to the LGO whether her view was that the Adams sisters could ever have pursued the complaint without assistance in light of their health problems and that if her answer to that was in the negative, they invited her to find it reasonable that Lambeth should bear the costs rather than the LSC bearing some and Pierce Glynn having to write off a significant balance.
The LGO replied, somewhat surprisingly given earlier indications, that neither she nor her senior officer were persuaded that it would be reasonable to ask Lambeth to pay the legal costs. In October 2009 with Lambeth having paid the Adams sisters £2000 in compensation as recommended and agreeing to review their procedures, the LGO issued a decision to discontinue the investigation and close the file and that action was the subject for this application for judicial review. The grounds were largely aimed at disputing the lawfulness of the decision to discontinue the investigation (grounds 1,2,3 and 5) and except for some criticism of the LGO for not issuing a statement of reasons, these were mainly rejected on technical points (those interested in the ability of the LGO to discontinue should refer to paras. 23 onwards in the judgment), however it is ground 4 which is the more concerning.
Ground 4 was a challenge on the failure to recommend payment of Pierce Glynn’s costs. Argument was based upon the power of the Ombudsman contained in s30(1) or s31(2A) of The Local Government Act 1974 to make recommendations “to prevent injustice being caused in the future in consequence of similar maladministration in connection with the exercise of the authority’s administrative functions”. Pierce Glynn pursued the point on the basis that if reasonable legal costs would not be recommended, this would damage the future ability of their firm and others to act for clients such as the Adams sisters who clearly needed the assistance they had received to obtain a just and long overdue outcome. The Public Law Project was given leave to to intervene in the matter and did so by letter putting forward a case for public authorities whose decisions are overturned, having to pay the costs incurred by the legal aid fund together with a surcharge. The Legal Services Commission also wrote via Pierce Glynn supporting the principle that the fund should be reimbursed by a public body found to be at fault for the expense incurred. Sadly, the judge was having none of it. He found that the costs did not follow the result in the kind of alternative dispute resolution process carried out by the LGO, and that this sort of process should not be ‘judicialised’. The application for JR was dismissed.
Perhaps the most telling remark made by the Judge is found in the penultimate paragraph: “Legal representation is not available in complaints to the Ombudsman. If solicitors take on such work it has to be at Legal Help rates.” It would seem likely that the ‘if’ mentioned there will just get bigger as a result of this judgment.
So, did Pierce Glynn fund the two day trip up to the High Court themselves (and pay Mr Buley’s fees themselves) – or were they able to get a funding certificate issued by the LSC to fund their failed attempt at getting paid in excess of the Legal Help rates? [I’m guessing they weren’t paying for the litigation even though it would only have benefitted them and not their clients]
Anyone know what costs order was made by Bean J in respect of the JR proceedings themselves?
Chris.
No idea at all, I’m afraid. Might have been a funding certificate, might have been a CFA. I think there would have to have been some form of retainer by the client as even a JR on an LGO costs decision is still on client’s behalf, not self-acting.
As to the costs order – again, no idea. I would presume the usual rule applied, but whether there was legal aid protection or not, or a Sibthorpe & Morris style indemnity on a CFA, I couldn’t say.
Do you not think that there is a point of principle involved, particularly given the finding of the judgment highlight by FT in the post?
A point of principle? I can see why Pierce Glynn might have got all excited when the LGO seemed to be indicating that she would recommend the payment of costs – and that their initial glee would have turned to scowling disappointment when the LGO finally decided that it would not do so. But I don’t really accept that Pierce Glynn ever had much of a case. The court’s decision seems eminently sensible and correct. As to the arguments marshalled by Pierce Glynn in the High Court, well it is always instructive (and entertaining) when a vested interest does its darnedest to masquerade as a point of principle.
I rather expect that when the LGO gave the indication that she might recommend the payment of costs she may have been under the misapprehension that the sisters might somehow have been paying Pierce Glynn out of their own pockets. No doubt she deals with many cases where the complainants are paying their own solicitors bills.
I know that per Boxhall v LB Waltham Forest it is supposed to be immaterial to the court’s decision that one party is legally aided but it is, of course, the discrepancy between legal aid rates and commercial rates that causes solicitors to push so hard for their costs when they win a case against a local authority. However, I still think it is wrong that a solicitor should recover several times worth of fees if he can somehow get payment from ‘public body A’ [the local authority or government dept whose decision is being challenged] than he could could if he were to get payment from ‘public body B’ [the LSC]. My view is that if a solicitor is doing legal aid work then he should be content to be paid at legal aid rates. If those rates are inadequate then the correct course of action would be for solicitors to petition HMG for an increase. I realise that now may not be exactly the best time to do that given that this present government of millionaire old Etonions are so very busy telling us how we must all tighten our belts but I’m sure that a case could be made for having legal aid rates linked to civil service and MPs pay. Thus when MPs pay goes up so do legal aid rates. Just a thought.
Chris, wouldn’t it be better if the Local Authority didn’t persist in maladministration for two years despite the applicants being represented? That’s two years worth of dealing with a Local Authority refusing to correct its error on a fixed fee legal help.
Now, there is a van issue here on the LGO route. If, for example, Pierce Glynn had gone the JR route initially (and I presume that limitation was a reason why they didn’t, though I don’t know), they would have had a strong case for costs – either through winning, or the LA withdrawing and remaking the decision, post issue (Bahta & Ors). So, given that substantial legal assistance was required, why should there not be a ‘polluter pays’ principle?
The counter view, as stated by the Court is that the LGO is a non-costs and supposedly DIY route. Where the clients are not capable of bringing a challenge to the LGO by themselves – and allocation is hardly a straightforward matter – this is not going to help them.
I’m afraid that you do not appear to know how legal aid works, in particular the fixed fee legal help. This challenge was not even about rates (legal aid v inter partes) but about costs beyond the fixed fee (about £156 at present). That said, I do like the idea of rates being indexed linked to Civil Service pay. Over the last 10 years, the rates have gone down by some 20% in real terms, and have just been cut by a further 10%, so even a freeze would be attractive.