R Aman Solcitors Advocates v Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 11 November 2011 |
| Neutral Citation | [2011] EWHC 3402 (Admin) |
| Docket Number | CO/2868/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 November 2011 |
[2011] EWHC 3402 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/2868/2011
Mr Mahmood (instructed by Aman Solicitors) appeared on behalf of the Claimant
Miss Scolding (instructed by LSC) appeared on behalf of the Defendant
This is a renewed application for permission to apply for judicial review. The claimant is a law firm which provides legal services, including immigration legal services. I say at the outset that there is no issue that this firm is not expert in undertaking this type of work. Nor is there any question at all about the quality of the work it does in what we, in this court know, is a very difficult area.
Before 2010 the firm provided services at Harmondsworth and Yarlswood immigration removal centres ("ERC"). That was under a contract which they had with the defendant, the Legal Services Commission.
In 2009 the Legal Services Commission proposed that it would conduct a new tendering exercise. In June 2009 it published a "civil bid rounds for 2010 contracts" document, which was a consultation response in relation to the civil bid rounds for 2010. In the course of that consultation document, at paragraph 3.49, the Commission indicated that the award of a mainstream immigration and asylum contract did not guarantee the award or an IRC contract, which would be subject to an additional tender exercise. That paragraph continued that an application to join IRC rotas would be submitted at the same time as a mainstream contract bid, to enable the Commission to measure the capacity of applicants to undertake all the work bid for in the immigration and asylum field at the same time.
"Work undertaken in IRCs, particularly fast track work, is resource intensive and we need to ensure that applicants have capacity to deliver these services along with mainstream contract work they tender for."
In December 2009 the Commission published its "information for applicants", the so called IFA. In addressing the issue of fast track scheme rotas that document said at paragraph 7.19 that the contract year would be divided into 52 rota weeks. The rota weeks were in turn to be divided into five standby days, Monday through Friday, each standby day being divided in turn into rota slots. Each rota slot equalled a client that the IRC was likely to receive for processing through the fast track scheme.
Paragraph 7.19 contained a box which indicated that in Harmondsworth the approximate number of rota slots per standby day would be 14, the approximate total number of rota slots per week would be 70, and the approximate number of rota slots per rota week available in the contract year would be 3,640. The respective figures for Yarlswood were 6, 30 and 1560 respectively.
Paragraphs 7.22 of the IFA read that providers "must have capacity to allocate each client a level 2 case worker, to contact the client on a standby day and attend the IRC at the subsequent attendance day when the substantive interview will take place." The paragraph continued that level 1 caseworkers were not permitted to undertake any work in relation to fast track clients. Paragraph 8.3 of the IFA said in relation to Harmondsworth and Yarlswood that where five or more providers were tendering, the Commission would require at least five providers to deliver the services under the fast track scheme.
Appendix B of the IFA set out selection criteria and scoring. In relation to these criteria, first there was, as relevant in this case, a preference to be given to applicants which after December 2008 had a greater number of fresh asylum applications accepted as fresh asylum claims by UKBA. A maximum of ten points could be given. The points were awarded so that if firms had dealt with 80 or more successful applications they would be given ten points, 50 to 79 such applications, eight points, 25 to 49 such applications six points, ten to 24 such application, four points, five to nine such applications and four or fewer such applications zero points.
As regards firms that had obtained release for clients through successful bail applications after December 2008, there was to be a maximum of five points. They were awarded so that if a firm had obtained bail for 20 or more clients, they would be given five points, ten to 19 clients, three points, one to nine, two points, and zero clients, zero points.
Finally, the appendix indicated that preference would be given to firms which since December 2008 had the greatest success in having their judicial review claims granted permission. Again, the maximum was five points. Points were awarded so that if the firm had obtained permission for five or more claims, it would be given five points, three or more claims, three points, and so on.
The claimant completed the application form. The Commission, through Miss Scolding has, said that the application form was committed immaculately. The claimant applied for 320 rota slots, 200 at Harmondsworth and 120 at Yarlswood. In relation to the heading "fresh asylum applications", the claimant indicated that it had four or fewer such claims accepted by UKBA as being fresh asylum claims. Consequently, it was awarded zero points under that head. In relation to successful bail applications, it indicated that it had ten to 19 successful claims. Therefore under that head it was awarded three points. In relation to judicial review applications granted permission, it had five or more such claims so that it was awarded five points.
In this judicial review the claimant contends, to put it in very broad terms, that the failure to award it a contract was unlawful.
At the outset Mr Mahmood, representing the claimant, sought an adjournment. That was on the basis that there are two cases before the Court of Appeal which, in his submission, had a bearing on the outcome of this case. Those two cases at first instance are R (On the application of Harrow Solicitors and Advocates v Legal Service Commission [2011] EWHC 1087 and Hoole & Co v Legal Services Commission [2011] EWHC 886.
Mr Mahmood also contended that there should be an adjournment because the Legal Services Commission had not, at this point, given adequate disclosure to enable the claimant properly to advance its case. Having considered the papers yesterday, I refused the adjournment, and although Mr Mahmood agitated the point again this morning, I reaffirmed my decision that there should not be an adjournment.
The basis is this. The two cases to which Mr Mahmood referred do not address the issue arising in this judicial review. The Harrow Solicitors and Advocates case involved a law firm which had completed its form but had mistakenly answered "no" to a question as to whether the firm offered a regular drop in. It did not succeed in its bid. It would have scored extra points if it had answered "yes" to that question, which in fact it could have done because it did offer a drop-in service. It was submitted that the Commission's decision was Wednesbury unreasonable and disproportionate as there was a clerical error which was objectively verifiable, in other words, that there were drop-in centres being offered.
The Hoole decision involved a submission of a tender where some of the information had unknown to the applicant, not been saved properly in the computer application process. Blake J refused the application on the basis that the Commission did not have a duty to enquire into other data which it held to alert it to the fact that the law firm's application was defective.
Neither of these cases raise an issue about the criteria used by the Commission in the consideration of tenders. To my mind it is clear that whatever the outcome of these appeals in the Court of Appeal, they can have no bearing on the issues raised by the claimant in this case.
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