R All About Rights Law Practice v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Karen Walden-Smith |
| Judgment Date | 12 November 2021 |
| Neutral Citation | [2021] EWHC 3048 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5162/2018 |
[2021] EWHC 3048 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Karen Walden-Smith sitting as a Deputy Judge of the High Court
Case No: CO/5162/2018
R E Nadarajah (Director of the Claimant) for the Claimant
Sarah Love (instructed by the Government Legal Department) for the Defendant
Hearing dates: 10 November 2021
Approved Judgment
At the hearing on 10 November 2021, I determined the Defendant's application for summary judgment against the Claimant's claim for judicial review of the decision of the Legal Aid Agency dated 13 September 2018. These are the written reasons for that determination.
I had the benefit of written and oral submissions from Mr Nadarajah on behalf of the Claimant, together with his witness statements, and written and oral submissions from Miss Love on behalf of the Defendant, together with evidence in the form of witness statements from Miss Mychajyslshyn and Mr Flewers. I am grateful to both advocates for their representations.
The Claim
The Claimant, All About Rights Law Practice is, or was, a sole-practitioner law-firm specialising in mental health law. Until withdrawal from the legal aid contract on 28 February 2021, the Claimant held a legal aid contract with the Legal Aid Agency (LAA) to provide services in mental health law.
By a claim for judicial review dated 13 December 2018, and issued on 21 December 2018, Mr Ranjan Errol Nadarajah, as the sole-practitioner of the Claimant, brought a challenge to the decision of the LAA made on 13 September 2018 to uphold the rating of “Below Competence (4)” given to the Claimant law firm in an independent peer review dated 26 June 2018.
The challenge to the LAA decision was made on four grounds:
(i) the peer review report (both the original report and the final report after submissions) did not take into account the results that the Claimant had obtained in previous contract reviews and audits;
(ii) the role played by the peer review process in the LAA's system for monitoring standards of service amounted to unlawful abdication of power by the Lord Chancellor;
(iii) the peer review was inadequately reasoned; and
(iv) the peer review was vitiated by factual mistakes and errors.
Mr Nadarajah applied on 7 March 2019 for the name of the Claimant to be amended to the firm, All About Rights Law Practice. He also applied to amend the grounds and stay the second peer review. On 14 April 2019, Sir Ross Cranston sitting as a High Court Judge ordered the amendment of the Claimant's name, that the application for permission to judicially review the Lord Chancellor be resubmitted as soon as possible after the second peer review, and that the Claimant's application to stay the second peer review be refused. The reasons given by Sir Ross Cranston for his orders included that, while he did not consider the second peer review to be an alternative remedy, he did consider that the results of that second peer review would assist both the judge in considering permission, and the claimant in amending its grounds.
There was a second peer review in March 2019 which also resulted in a “Below Competence (4)” rating. That rating was communicated to the Claimant by letter dated 11 July 2019 and was upheld on 10 September 2019. The LAA gave notice to terminate the Claimant's legal aid contract on 10 December 2019. The Claimant applied to the Contract Review Body for a review of the decision to terminate the contract, which review resulted in the quashing of the determination decision and a remittal of the matter to the LAA for a second peer review in June 2021. The Claimant voluntarily withdrew from the legal aid contract for the provision of services on 28 February 2021, and the second peer review was consequently cancelled.
The Claimant resubmitted the application for permission to judicially review the Lord Chancellor and on 26 May 2021, Lang J ordered that the Claimant have permission to amend the statement of ground and granted permission for judicial review. Lang J found that the Claimant could not rely upon the documents relating to the second peer review as those post-dated the first peer review, but that the lawfulness of the first peer review had not become academic at that time as it was still being relied upon by the Lord Chancellor.
The hearing on 10 November 2021 was listed for the substantive judicial review claim. On 22 October 2021, the Defendant applied for summary judgment pursuant to the provisions of CPR 24.2 on the basis that the claim was wholly academic and that the Claimant had no real prospect of succeeding on his claim, and there was no other compelling reason as to why the claim should be disposed of at trial.
I was very mindful of the fact that the application for summary judgment had been made late and, as a consequence, had only been listed for hearing at the commencement of the substantive hearing for judicial review. I was also mindful of the fact that in May 2021 Lang J had expressly found that, at that time, the claim was not an academic one. I raised the issue as to whether the application for summary judgment should even be heard immediately prior to the substantive hearing, given the fact that the parties had both prepared for a substantive hearing and the court had set aside a day for the hearing. The saving of court time and costs was therefore not as significant as it would have been had the application been made earlier.
I invited brief submissions on behalf of both the Claimant and the Defendant on that issue and, in the course of making his oral submissions that the court should not consider the summary judgment application, Mr Nadarajah made a number of allegations of misconduct and bad faith on the part of the LAA. Those allegations were made without any apparent factual or logical basis and were rigorously opposed by the Defendant. I made it clear to Mr Nadarajah that he must desist from making serious allegations of misconduct and bad faith without evidence to support such allegations.
For the reasons given in the extempore judgment, I determined that it was appropriate to hear the application for summary judgment before any consideration of the substantive application. While the application for summary judgment had only been made a short time before date listed for the substantive hearing, some of the matters relied upon by the Defendant in support of its application had only come to the Defendant's attention shortly before the application and there was good reason for the late application. Further, it is an important principle that judicial reviews are not entertained if they serve no useful purpose. There must be a live issue between the parties so that there is a need for a final remedy and, while the court has a discretion to determine an academic claim where there is a public interest in doing so (as is explained clearly by the Court of Appeal in R (L, M, P) v Devon County Council [2021] EWCA Civ 358), the normal principle is that the court does not decide hypothetical questions. The court is also obliged to have regard to whether the effect of entertaining an academic claim in any particular case may be to encourage or fail to deter academic claims in the future.
“Even in a case where a claim only becomes academic shortly before it comes to court, by which time most if not all the legal costs may already have been incurred, this [entertaining an academic claim may encourage or fail to deter academic claims in the future] is a factor in my view to be weighed in the balance against the argument that the fact of costs having already been incurred in the instance case is a factor pointing in favour of the court proceeding to adjudicate on the claim.” (per Stadlen J: R (Raw) v London Borough of Lambeth [2010] EWHC 507 (Admin).
In this case, the Defendant had provided a good explanation for the late application and was submitting that the claim was now academic with no other reason to hear the claim. While that was rigorously disputed by the Claimant if, after hearing full submissions on the application, it were determined that the claim was academic with no other good reason to hear the claim, then it was incumbent upon the court to bring the claim to an end in order to deter the continuation of such academic claims. In the all the circumstances of this matter, it was consequently appropriate to hear the application for summary judgment.
The Factual and Legal Background
As is set out above, the Claimant was a vehicle for the sole practice of Mr Nadarajah and, until voluntary withdrawal from the contract, the Claimant held a legal aid contract with the LAA.
The Defendant has overall responsibility for securing the provision of legal aid pursuant to the provisions of section 1(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO), and by section 2(1) of LASPO the Defendant is empowered to make such arrangements as he considers appropriate for the purpose of carrying out his functions under Part 1 of LASPO.
Section 3 of LASPO provides that the Defendant “may set and monitor standards in relation to services made available” under Part 1 of LASPO and make arrangements for the accreditation of persons providing or wishing to provide such services, which includes arrangements for monitoring and withdrawing accreditation. Section 4 of LASPO contains the provisions for a Director of Legal Aid Casework, who makes decisions on legal aid on individual cases, section 5 contains provisions for delegation including subsection 5(1) which allows the Defendant's functions, including under section 3, “to be delegated to a person authorised by the Lord...
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R Tabassum Hussain v Secretary of State for Health and Social Care
...for summary judgment may be used in a similar way in judicial review (see eg. R (All About Rights Law Practice) v Lord Chancellor [2021] EWHC 3048 (Admin)) but that does not, in my judgment, affect the approach which I should adopt to the present strike-out application. The PCW 5 The Healt......