R (Hereward & Foster LLP) v Legal Services Commission
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3370 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9498/2010 |
| Date | 21 December 2010 |
[2010] EWHC 3370 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon Mr. Justice Burnett
Case No: CO/9498/2010
Helen Mountfield QC and Nick Armstrong (instructed by Hereward & Foster) for the Claimants
Martin Chamberlain and Sarah Love (instructed by Michael Rimer, Legal Services Commission) for the Defendants
Hearing dates: 9 th and 10 th November 2010
The Hon Mr Justice Burnett:
Introduction
Hereward and Foster LLP [“the Solicitors”] is a firm of solicitors based in the London Borough of Newham which was unsuccessful in its bid for a contract with the Legal Services Commission [“LSC”] for ‘new matter starts’ in the immigration package of publicly funded civil work. The tender exercise was subject to the Public Contracts Regulations 2006 [“the 2006 Regulations”]. The Solicitors had also originally been unsuccessful in their bid for a community care contract (as part of the social welfare package) but a re-evaluation by the LSC of the successful bids revealed that some bidders had insufficient staff to service the new matter starts they had secured. As a result, a surplus became available and some were awarded to the Solicitors. This is a rolled-up application for permission to apply for judicial review of the decision to refuse to award a contract for immigration services to the Solicitors, and to maintain that decision on appeal. The reason why the Solicitors were unsuccessful in their bid was because they failed to score the maximum points available for what has been described as ‘the supervisor attendance criterion’. It formed one of seven criteria by which bids from those who satisfied the mandatory requirements of entry into the bidding process were evaluated. A total of eight points was available under this head, but the Solicitors scored only five. That made the difference between success and failure in the bid.
The Solicitors contend that the inclusion of the supervisor attendance criterion in the tender evaluation indirectly discriminated on grounds of sex against the firm and its sole female supervisor for immigration work, Deborah Adler. She works part time. The Solicitors say that they were disadvantaged in the process because they employed a part time female supervisor. Indirect sex discrimination is said to arise because more women work part time than men. Deborah Adler is said to have been disadvantaged because the criterion put her under pressure to increase her hours and put the Solicitors (of which she was a partner) under financial pressure to employ additional staff or forgo the best chance of securing the contract. Additionally, the Solicitors argue that the LSC failed to consider the potential impact of this criterion on women and as a result breached its general equality duty under section 76A of the Sex Discrimination Act 1975 (“the 1975 Act”). The LSC disputes these contentions and also argues that the claim has been brought long out of time. It submits that there is no good reason to extend time particularly in the light of the potential prejudice to third parties and the detriment to good administration that would flow from granting any relief, were the Solicitors to succeed in their claim.
The Facts
The Solicitors are a long-established practice based in Barking Road, Canning Town. They provide a range of services, much of it legally aided, and have been undertaking immigration work for about 15 years. When the bid for immigration work was made the Solicitors were a partnership with three partners. Deborah Adler was one and Sarah Lerner another. Deborah Adler undertook, amongst other things, immigration work and acted as supervisor for that aspect of the practice. Sarah Lerner was the supervisor for community care work. The third partner was a man, who practised in other fields. Since the rejection of the tender for immigration work, the Solicitors have constituted themselves into a limited liability partnership, with each of the former partners becoming members. At the time of the alleged discrimination, however, they remained a partnership. The Solicitors employ eight further solicitors, nine paralegals or trainees (who are caseworkers in the language of the LSC tender process) together with administrative and other support staff.
Both Deborah Adler and Sarah Lerner work part time. It is unnecessary to recite in detail the working arrangements of Sarah Lerner, because the challenge to the social welfare package element of the tender process has fallen away. It is sufficient to record that she officially works four working days a week (although regularly finds herself in the office on the fifth). She juggles child care arrangements with her partner in respect of their two adoptive daughters who are aged seven and four. They were placed with Sarah Lerner and her partner in February 2008. Deborah Adler is a single parent with twins who are 10 years old. She is contracted to work 28 hours a week (the equivalent of four working days) but generally spreads her work over five days. In common no doubt with many working in a professional capacity, she regularly works for longer than her contracted hours. She estimates that she works an average of 32 hours a week and is available on the phone or via blackberry when she is away from the office. Her practice is to leave the office early at about 15.30 on three days. That allows flexibility in child care arrangements. It would be extremely difficult to work full time at the moment and, she observes, her hours were also agreed to allow a fair profit share to be fixed. Deborah Adler has provided considerable detail about the arrangements she has in place to enable her children to go to and from school and also to undertake extra-curricular activities. Both are preparing for the 11+ and will also do common entrance examinations, for which they receive tuition away from their current school. Flexibility in her working patterns, together with part time work are both clearly features that deliver an advantage to Deborah Adler and her children.
The Solicitors encourage flexible working for their staff. An example has been given of a solicitor in the personal injury department adjusting hours to reflect family commitments before returning to full time work when the children were older. None of this is unusual or unexpected.
The working of the immigration section at the Solicitors is described by Deborah Adler in this way:
“The immigration team is comparatively small. At the moment I am the only solicitor and the only supervisor in the team. There is one caseworker who started in July 2010 and does full-time immigration work as well as spin-off work e.g. welfare benefit and NASS advice. Previous to that a trainee solicitor worked in the same role. She has remained in the firm but is now training in another area of work. She has kept her current immigration case load and takes on about 1 new case a week in immigration. At the most therefore I am responsible for supervising 1 caseworker and 1 trainee solicitor.” (original emphasis)
That detail was provided in her first witness statement dated 10 October 2010. It was augmented in a second statement of 1 November. Deborah Adler readily agreed the importance of supervision and described how she supervised the two fee earners she had earlier identified. She would see the caseworker three or four times a day. She reads all the letters written by that caseworker. She sees the trainee once or twice a day. She reads all her advice letters (but not routine letters) and any applications she has drafted. She reviews files and has regular meetings with the fee earners. The file reviews are done on an unannounced and spot-check basis. She also ensures that the fee earners keep up-to-date with the acquisition of legal knowledge. Deborah Adler explains how accessible she is as a supervisor, in particular because she is present in the office for almost full time, has a small number of people to supervise and can be contacted by her two subordinates at any time. It is, in any event, unusual for clients to be given appointments after 15.00 and she is always in the office (subject to holidays, illness or other professional duties) at that time. Deborah Adler is particularly alert to the need for the fee earners to comply with deadlines, both for making applications to the Secretary of State and for appeals to the First Tier Tribunal, which all who toil in this field of law know to be critical. She describes as ‘absurd’ the LSC's view that accessibility for supervision purposes can only be achieved by constant physical presence.
In October 2008 the LSC published a consultation document which proposed a fundamental overhaul of the way in which civil legal aid was to be provided in England and Wales. It was entitled ‘Civil bid rounds for 2010 contract’. It was a common feature of the arrangement proposed for most of the different packages of legal services in respect of which contracts were to be let that the tender process would impose a number of conditions, or minimum entry requirements, which those seeking contracts were obliged to satisfy in order to succeed. The bidders would be in competition for new matter starts (broadly a number of new cases). The entry conditions were directed to various matters designed to establish a threshold of competence and expertise which had to be crossed before the bidder could provide services under a contract. It is unnecessary to rehearse their content, save to...
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