Patterson v Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke |
| Judgment Date | 11 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1558 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 November 2003 |
| Docket Number | Case No: A1/2003/0547 |
[2003] EWCA Civ 1558
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Lord Justice Judge
Lord Justice Clarke and
Mr Justice Burton
Case No: A1/2003/0547
Mr Thomas Croxford (instructed by Mr Michael Rimer, Legal Services Commission) for the Appellant
Mr David Daly (instructed by Patterson Sebastian & Co) for the Respondent
Introduction
This is the judgment of the court. The respondent to this appeal is Ms Yvonne Patterson. She is the sole principal in a firm of solicitors called Patterson Sebastian & Co. She brought a claim before an Employment Tribunal ("ET") in which she alleged race discrimination in connection with her application to the Legal Services Commission ("the Commission") for a legal aid franchise. The Commission contended before the ET that in the light of the provisions of sections 4 and 12 of the Race Relations Act 1976 ("the Act") the ET had no jurisdiction to consider Ms Patterson's complaints. The ET (Ms EJ Potter, Ms M O'Sullivan and Mr M Javed) held that it did not have jurisdiction either under section 4 or under section 12 of the Act. Its decision was sent to the parties on 11 September 200Ms Patterson appealed to the Employment Appeal Tribunal ("the EAT") and on 21 February 2003 the EAT (His Honour Judge McMullen QC, Mr PAL Parker CBE and Mr H Singh) reversed the decision of the ET and held that the ET had jurisdiction under both section 4 and section 12 of the Act. Permission to appeal to this court was granted by Mummery LJ on 21 March 2003.
Before the ET and the EAT Ms Patterson's case was supported by the Commission for Racial Equality and the appeal is said to raise issues which may also be relevant to similar questions arising under the Sex Discrimination Act 1975, the Disability Discrimination Act 1995 and the Fair Employment (Northern Ireland) Act 1976. We should, however, stress that we are concerned only with the issues under the Act between the LSC and Ms Patterson as a sole practitioner. We should also stress that this appeal is concerned only with issues of jurisdiction. It is not concerned in any way with the question whether the allegations of discrimination made by Ms Patterson, which are denied by the Commission, are well-founded.
The Community Legal Service
The Commission is a body corporate which was set up by section 1(1) of the Access to Justice Act 1999 ("the 1999 Act"), which provides, so far as relevant, as follows:
"1(1) There shall be a body known as the Legal Services Commission …
(2) The Commission shall have the functions relating to –
(a) the Community Legal Service, and
(b) the Criminal Defence Service which are conferred or imposed on it by the provisions of this Act or any other enactment.
….
3. Powers of Commission
(1) Subject to the provisions of this Part, the Commission may do anything which it considers –
(a) is necessary or appropriate for, or for facilitating, the discharge of its functions, or
(b) is incidental or conducive to the discharge of its functions.
(2) In particular, the Commission shall have power –
(a) to enter into any contract,
4. Community Legal Service
(1) The Commission shall establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs.
(2) The descriptions of services referred to in subsection (1) are –
(a) the provision of general information about the law and legal system and the availability of legal services,
(b) the provision of help by the giving of advice as to how the law applies in particular circumstances,
(5) The Commission shall fund services of the descriptions specified in subsection (2) as part of the Community Legal Service in accordance with the following sections
(7) The Commission may set and monitor standards in relation to services of the descriptions specified in subsection (2).
(8) In particular, the Commission may accredit, or authorise others to accredit, persons or bodies providing services of the descriptions specified in subsection (2); and any system of accreditation shall include provision for the monitoring of the services provided by accredited person and bodies and for the withdrawal of accreditation from any providing services of unsatisfactory quality."
This appeal is concerned with the system of accreditation set up by the Commission under section 4(8) of the 1999 Act. The system of accreditation and what is called franchise works broadly in this way.
The Commission makes contracts with service providers to provide legal services. However, before it does so, it requires a service provider to satisfy a Legal Aid Franchise Quality Assurance Standard (or LAFQAS). The first step for an applicant (which we shall refer to as a firm) seeking a contract is to pass a Desktop Audit. If it passes the Desktop Audit it undergoes a Preliminary Franchise Audit which involves a visit by the Commission to see the firm's processes and audit its files. A firm may pass or fail or pass but be told that corrective action is required before the third stage, which is known as the Pre-Franchise Audit. A firm that passes the Preliminary Franchise Audit is known as a Provisional Franchisee and is awarded a one year General Civil Contract.
It is at the Pre-Franchise Audit stage that the firm must satisfy LAFQAS (now known as the Specialist Quality Mark) which is the means by which the Commission accredits firms under its power in section 4(8) of the 1999 Act. LAFQAS must be met by the provider in each area of law where a franchise is sought. A firm must satisfy LAFQAS to become a longer term franchisee and thus to receive public funds for the provision of legal services through the public support scheme on a longer term basis.
The document which sets out the LAFQAS scheme refers to applications being made by "organisations". However, it provides that "organisations" must appoint a named individual as "franchise representative" who need not be a partner or the sole principal in the firm but must be available at audits and have the requisite authority to ensure that any corrective action arising from audits is carried through. The scheme also provides for the appointment of a supervisor who need not be a solicitor or a legal executive but who must have ethics training.
It should perhaps be noted that a firm which satisfies LAFQAS is not required to provide the relevant services. However, as the ET observed, it is a quality standard which enables the holder to display a logo proving a certain level of service and which organisations like Citizens Advice Bureaux and consumer advice departments of County Councils may also seek.
If a firm passes the Pre-Franchise Audit its General Civil Contract is extended to three years. If it fails, it cannot normally remain as a Provisional Franchisee indefinitely – it must either proceed to full franchise status or go back to the beginning. We will return to the nature of the contract entered into between the Commission and the service provider in a moment in the context of the facts of this case. Ms Patterson's essential complaint is that as a result of race discrimination, obstacles were placed in her way such that she was not awarded full franchise status or the three-year contract, as she would otherwise have been. She also says that she has suffered loss.
The Act provides, so far as relevant, as follows:
"1. Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.
4. Discrimination against applicants and employees
(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another –
(a) in the arrangements he makes for the purpose of determining who should be offered that employment or
(b) in the terms on which he offers him that employment, or
(c) by refusing or deliberately omitting to offer him that employment
(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against the employee –
(a) in the terms of employment which he affords him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him or subjecting him to any other detriment.
12. Qualifying bodies
(1) It is unlawful for an authority or body which can...
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