R v The Legal Aid Board (ex parte Stephen Gilchrist)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAUGHTON,SIR FRANCIS PURCHAS,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 17 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0217-8 |
| Docket Number | QBCOF 93/0741/D |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 1994 |
[1994] EWCA Civ J0217-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Macpherson)
Before: Lord Justice Ralph Gibson Lord Justice Staughton Sir Francis Purchas
QBCOF 93/0741/D
In the matter of an application for judicial review
MR. D. MATHESON QC (Instructed by Richard Green, Legal Director, Legal Aid Board, London WC1R 4PP) appeared on behalf of the Appellant
MR. J. GOUDIE QC and MR. A. MITCHELL (Instructed by Gilchrists, London W1V 1DB) appeared on behalf of the Respondent
Thursday, 17 February 1994
Mr. Gilchrist is a solicitor who applied for judicial review of a decision by the Legal Aid Board. The decision was that he was not entitled to remuneration for the work that he claimed to have done under the legal aid scheme in connection with a company called Healthcall Own Solicitor Service Limited. Mr. Gilchrist succeeded before Macpherson J of Cluny, who quashed the decision; and the Legal Aid Board appeal to this Court.
In a nutshell, the scheme of Healthcall is as follows. It involves the company and, in any given case, three individuals: two of them are solicitors. I will refer to them without, I hope, appearing either rude or facetious, as the "waking solicitor" and the "sleeping solicitor" because that identifies the roles which they play.
The sleeping solicitor carries on a private practice and, when he goes home in the evening, is minded not to respond to calls from those who are, or would like to be, his clients to advise them in a police station.
The waking solicitor is somebody who, for a shift of so many hours from time to time, is prepared to undertake such a task. Thirdly, there is the suspect who is arrested by the police and taken to the police station and told that he is entitled to legal advice. Or he may be what is somewhat optimistically called in the legislation, a "volunteer", that is somebody who accompanies the policeman to the police station because he is more or less politely asked to do so.
When the suspect gets to the police station and is told that he may have advice from a solicitor, he gives the name of the sleeping solicitor. The police officer either knows already or discovers from a telephone call that the sleeping solicitor's night-time enquiries are referred to Healthcall Limited. When they are reached, the waking solicitor is put on the line and gives the advice which the suspect in the police station asks for. That is the scheme in outline.
The problem arises under section 2(6) of the Legal Aid Act 1988 which provides:
"Advice, assistance and representation under this Act, except when made available under Part II, shall only be by legal representative, but in the case of Part II, may be by other persons."
We are not concerned with Part II in this case. "Legal representative" at present means either a barrister or a solicitor. What the Legal Aid Board say is that the advice in those circumstances is not given by a solicitor; it is given by Healthcall Limited, who are not a solicitor and are incapable of becoming one. Therefore, there is no duty and no entitlement to pay under the Legal Aid Act.
The Legal Advice and Assistance Regulations 1989 have some bearing on this point. Regulation 4 provides for a limit of £90 in the case of advice and assistance given in accordance with regulation 6(1). That regulation provides:
"A solicitor may give advice and assistance to any person who -
(a)is arrested and held in custody at a police station or at other premises; or
(b)is being interviewed in connection with a serious service offence; or
(c)is a volunteer."
Regulation 6(3) provides:
"The Board may make arrangements for solicitors designated by the Board to attend at police stations or other premises in order to provide advice and assistance under paragraph (1)."
That is the Duty Solicitor Scheme. It is not exclusive. The regulations contemplate that a suspect may obtain advice from another solicitor other than the duty solicitor arranged by the Board under that regulation. Also perhaps relevant is regulation 20, which provides:
"Subject to any arrangements made by the Board under regulations 6, 7 or 8, nothing in these Regulations shall prevent a solicitor from entrusting any function under these Regulations to a partner of his or to a competent and responsible representative of his who is employed in his office or is otherwise under his immediate supervision."
What that is saying is that the solicitor who is engaged by a suspect is not obliged to come to the police station himself: he may send a partner, or a competent and responsible representative employed in his office or otherwise under his immediate supervision. Still he would be entitled to be paid.
I turn now to the history of the matter. Healthcall was formerly called Aircall. It ran a paging service for general medical practitioners. It sent out calls over the air which were received by machines which the doctors carried with them, or something like that. There came a time when it was apparent that it was impracticable for police stations to maintain from day to day an up-to-date rota of duty solicitors. There had to be some central point to which the police officers could telephone to find out who the duty solicitor was on any particular evening. For that purpose, the Legal Aid Board used Healthcall, as they were by then called. But that did not last for any great time, because a rival body emerged in the shape of the Automobile Association, whose quotation, as I understand it, was rather cheaper than Healthcall. So they secured the servicing of the Duty Solicitor Scheme.
Healthcall then set up the rival scheme with which we are concerned today. I have already given an outline of it, but I will enlarge on that somewhat. A group of solicitors who do not propose to answer calls at night and are therefore sleeping solicitors, give their names to Healthcall. Although they are called "subscribers". They do not have to pay anything, it is thought, they simply let it be known that they are content for their night calls to be passed on.
There is also a group of waking solicitors who are signed up by Healthcall. They have to fill in application forms, and they have to give an assurance that they have certain qualifications. They are paid a commitment fee for each shift, depending on the length of the shift, by way of guarantee as to how much work they will get to do. In return, they pay what are called "facility charges" whenever they do give advice to a suspect, the payments being variable according to whether the telephone call is a long one or a short one. They attend at the premises of Healthcall for a shift of a given length from time to time. When a suspect seeks advice and the sleeping solicitor who he has named is not available, the suspect is put on to the waking solicitor at Healthcall who gives advice on the telephone.
This is spelled out in a number of documents. I must first refer to the contract between Healthcall Own Solicitor Service Limited and a particular waking solicitor. It recites:
"Healthcall has created a network of facilities to enable solicitors to operate an own solicitor service under the umbrella of those facilities…"
It is goes on to say:
"The own solicitor service is intended to be operated by individual solicitors."
There are then the terms of the agreement. By clause 2, Healthcall agrees to provide the necessary facilities for administering the service. It agrees that it will seek to ensure that all subscriber solicitors will comply with the Code of Practice. It will provide office facilities, telephone facilities, and so forth. In return, by clause 2.2, the waking solicitor agrees to pay the facility fees which are set out in clause 4.4. They, I think we were told, were £3 for a short telephone call and £16 for a long telephone call.
The waking solicitor agrees to make his services available for the service and to commit himself to availability for set periods during which the facilities would be made available to him. He is notified by Healthcall one month in advance of the required hours to be worked by him.
One then comes to clause 7. 7.1:
"The relationship of Healthcall to the Advising Solicitor is of a facility provider and at no time will the Advising Solicitor hold himself out as being an employee of Healthcall."
7.3:
"This agreement constitutes a contract for the provision of services and not a contract of employment."
7.4:
"Neither of the parties to this agreement is the partner of the other and nothing in this agreement shall render the Advising Solicitor an employee or a partner of Healthcall."
Finally 11.4:
"This agreement sets out the entire agreement and understanding between the parties in connection with the consultancy."
There is thus considerable emphasis on the point that the waking solicitor is not the employee of Healthcall, indeed to such an extent that it tends to engender a degree of scepticism.
There is also the Code of Practice which is agreed between Healthcall and the waking solicitor. That provides in paragraph 3.1:
"At no time will the Advising Solicitor be allowed to inform the suspect that he/she can or will act for the suspect in place of his own solicitor in connection with this or any other case. If the suspect requests details of the Advising Solicitor's firm's address, telephone or fax number, the Advising Solicitor will politely decline to provide them."
3.2:
"If the...
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