R (Law Society) v Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES,MR JUSTICE BEATSON |
| Judgment Date | 30 September 2010 |
| Neutral Citation | [2010] EWHC 2550 (Admin) |
| Docket Number | CO/9207/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 September 2010 |
[2010] EWHC 2550 (Admin)
Before: Lord Justice Moses
Mr Justice Beatson
CO/9207/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Ms Dinah Rose QC and Ms Maya Lester (instructed by Bindmans) appeared on behalf of the Claimant
Mr Clive Lewis QC, Mr Paul Nicholls and Mr Michael Lee (instructed by Legal Services Commission) appeared on behalf of the Defendant
Mr Nicholas Bowen QC and Mr Ben Chataway (instructed by Creighton and Partners) appeared on behalf of the 1st Intervenor
Mr Philip Engleman and Ms Jane Callan (instructed by Muckle LLP) appeared on behalf of the 2nd Intervenor
Mr Lindsay Johnson (instructed by NYAS) appeared on behalf of the 3rd Intervenor
Mr Anthony Speaight QC (instructed by Lock and Marlborough) appeared on behalf of the 4th Intervenor
: This is the judgment of the court. Although ex tempore, it contains substantial contributions from Beatson J.
For three years between 2007 and 2010 solicitors have provided publicly funded family law services throughout England and Wales through approximately 2,470 offices. They provided those services pursuant to the Universal Contract (Civil) awarded by the Legal Services Commission (“LSC”). The contract was due to expire on 31 March 2010, but has been extended to 14 November 2010. In order to award new contracts, the LSC conducted a competitive procurement process designed to identify those who are best qualified to provide legal services across the whole range of issues which arise in family law (integrated services) in geographical areas and, where necessary, through access points specified by the LSC.
Following a lengthy period of discussion and consultation between 2008 and 2010, on 26 February 2010 the LSC announced the criteria and scoring system by which they would select those best equipped to provide the required services, and they invited solicitors to bid. The period for bids expired eight weeks later on 21 April 2010.
The result of this process, announced on 27 July 2010, was to reduce the number of offices providing family law services from 2,470 to 1,300, a reduction of about 46 per cent. No one had expected so dramatic a reduction. The LSC itself had repeated, in the period from 2008 and the announcement of the terms of the tender in 2010, that it expected “the great majority of existing providers to retain a contractual right to provide family law services”. At most it had expected a reduction of between 20 to 30 per cent of providers whose publicly funded family services amounted only to a very small proportion of their work.
The reduction caused serious and vociferous concern. It was not just a question of numbers. It was not merely a question of dismay that those who had spent their professional lives for little reward providing publicly funded services to the deprived, socially disadvantaged and excluded were no longer to be permitted to do so. The focus of concern was that those who were acknowledged to be highly skilled and experienced professionals were no longer going to be able to deploy those skills in areas where they were most needed. That concern was expressed not merely by those who had failed, but by those who had succeeded, and by those who had come to know, trust and rely upon solicitors practising in a difficult and demanding jurisdiction, namely clients, minority representative organisations and judges.
Of course, any competition will throw up losers, will lead to change and cause concern. If that change is the consequence of a fair competitive process designed to lead to improvement in the provision of services by those most qualified to provide them, any complaint about the competition is likely to be unjustified.
The competitive process was designed to identify those best able to provide those services which the LSC judged to be necessary in locations where the LSC judged they would be accessible to those who needed them. This application for permission and, if granted, for judicial review by the Law Society is founded on the allegation that the process adopted by the LSC for identification of those who would best be able to achieve its objectives was seriously and unlawfully flawed. The process, it is alleged, was arbitrary, unfair and discriminatory. The manner in which the LSC conducted the tender process, it is argued, had no rational connection to the aim which the LSC had sought to achieve.
Central to this contention is the submission that the LSC ought to have announced in advance the selection system by which it proposed to assess who was best able to provide integrated services. Two categories of criteria were adopted: essential criteria, that is the minimum qualification which had to be reached before a contract would be awarded; and selection criteria, in the event of a need for competition, by which the LSC sought to identify those best qualified in order of merit. The purpose of the criteria is of great importance in this application. It was, as Sarah Kovac Clark, Head of the Community Legal Service of the LSC (states in paragraph 56 of her statement) to identify the very best providers: firms which were good, but not rated as highly as the best would receive little or nothing.
The criteria announced in February 2010 revealed that the only way in which the maximum score of 40 under the selection criteria could be achieved was by showing that at the time of the bid at least one caseworker was accredited under two different panel accreditation schemes. There were, of course, a number of different criteria with different marks, but the highest score could only be gained if at least one caseworker, who would provide family services at the office related to the bid, was a member of the Law Society's Children Panel Accreditation Scheme (five marks), and at least one caseworker, who could be the same caseworker, was a member of the Law Society Family Law Accreditation Scheme (having passed the “violence in the home” module), or a Resolution Accredited Specialist in Domestic Abuse. The system of accreditation was designed to assess experience, knowledge and commitment in areas of family law to which the LSC wished to give priority.
There was another feature of the process which increased the importance of scoring maximum points and triggered the need of a competition and deployment of the selection criteria. Those who bid in any particular procurement area were required to bid for a number of “New Matter Starts” (that is fixed fee work by way of preliminary advice which does not require specific authorisation). The invitation to tender stated how many New Matter Starts were available for each of the 135 procurement areas. Should the number of New Matter Starts bid for by tenderers exceed the total number available, the LSC would award all these available New Matter Starts to the bidder with the highest score, subject to the bidder's capacity, measured as 200 New Matter Starts per caseworker. The available New Matter Starts would only be allocated pro rata (that is in proportion to the number of New Matter Starts for which a tenderer bid) in the event that two or more bidders tied in top place. This process of “winner takes all” meant that it was necessary to achieve maximum points to safeguard against the possibility that the amount of work would exceed the amount available and thus a competition would take place, and to avoid failure to obtain any contract at all. (A bidder who was awarded no New Matter Starts would not be awarded a contract).
Many firms bid for very large numbers of New Matter Starts. There was a powerful incentive to do so. If a number of providers came equal first under the selection criteria, then the New Matter Starts would be allocated pro rata, as we have said, in accordance with the amount for which the provider had bid. Many providers overbid in hopes that on allocation they would be awarded a number of New Matter Starts closest to the number they sought. Thus the numbers of New Matter Starts bid for usually exceeded the number available, and the need to use the selection criteria was triggered. The LSC was alive to this possibility and put in place the system we have identified of measuring capacity.
The criterion of accreditation to both panels frequently proved decisive. The loss of points attributable to accreditation made the difference between obtaining a contract and no contract at all. It is not disputed that a substantial number of firms failed in their bids because they did not, at the time of their bid, have a caseworker accredited to both the specified panels and could not obtain such accreditation in the eight-week period for bidding. It is not disputed that a substantial number of those who failed could have acquired accreditation had they appreciated that success might depend upon it.
At the heart of this application lies the complaint that in failing to make clear that such accreditation was necessary if maximum points were to be achieved at a time when a qualified tenderer could have applied for and acquired accreditation, the LSC acted unlawfully and frustrated the very aim it was seeking to achieve. That aim, as we have said, was to identify those who demonstrated they were best equipped in knowledge, commitment and experience to provide family law services. It was, so the Law Society contends, irrational not to give an...
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