SP, R (On the Application Of) v The Lord Chancellor

Introduction

This is claim for judicial review of the decisions of 25 June 2013 and 5 July 2013 by the Legal Aid Agency (“LAA”) not to grant prior authority to the claimant’s solicitors, a well-known firm of immigration lawyers, to instruct Bindmans LLP, another well-known firm of immigration lawyers, to provide ‘expert’ advice on her immigration status, and instead to indicate that the work would be funded in another way and at a different rate. The dispute is actually about rates of pay and whether, if Bindmans LLP are instructed as experts, they should be paid twice as much as they would be paid if they were the claimant’s solicitors advising directly on her immigration status.

The Legal Framework

The provision of funding for civil legal aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Section 32 of that Act excludes services in relation to foreign law, other than in particular circumstances.

The Civil Legal Aid (Remuneration) Regulations 2013 (SI 2013/422; “the Remuneration Regulations”) sets out the rates payable to providers under their contracts with the Lord Chancellor for work performed pursuant to their legal aid contracts. Schedule 3 of the Remuneration Regulations sets out rates and fees for civil legal aid work, and Schedule 5 deals with the rates and fees payable to counsel and experts.

The 2013 Standard Civil Contract sets out the terms under which legal aid work is to be carried out. The relevant provisions of the Contract are set out below.

(a)

Clause 1.1 of the Standard Terms, which reads in material part:

“In this Contract the following expressions have the following meanings:

...

“Agent” means an individual or organisation (other than Counsel) engaged by you to undertake Contract Work in accordance with the provisions of the Specification;

“Approved Third Party” means an individual or organisation engaged by you to undertake non-legal work ancillary to Contract Work, including experts and translators but excluding Agents and Counsel

...

“Counsel” means a barrister in independent practice and other such persons as are specified as Counsel under the Specification

...

“Contract Work” means the work that you may perform for Clients in the Category or Categories of Law and/or Class(es) of Work specified in your Schedule(s) and the Specification under, or by virtue of, this Contract ...”

(b)

Clauses 3.1 and 3.2 of the Standard Terms, which provide:

“Performing Contract Work yourself

3.1

This Contract is personal to you. Subject to Clause 3.2, you must not give, bargain, sell, assign or otherwise dispose of the benefit of any of your rights, or sub-contract, novate or otherwise delegate any of your obligations, under this Contract without our prior written consent. Any breach of this Clause 3.1 shall be a Fundamental Breach.

Sub-contracting, Agents, Counsel and Approved Third Parties

3.2

For the purposes of Clause 3.1, we consent to you:

(a)

sub-contracting your obligations under this Contract to the extent specified in your Contract for Signature;

(b)

appointing Agents to undertake Contract Work in accordance with the Specification;

(c)

appointing Counsel to undertake Contract Work in accordance with the Specification; and

(d)

appointing Approved Third Parties to undertake work in accordance with the Specification.”

[Emphases added]

The Contract Specification contains the relevant paragraphs set out below.

(a)

Paragraphs 2.5-2.8 of the Contract Specification, which provides:

“Use of Agents, Counsel and Approved Third Parties

2.5

You may instruct Agents, Counsel or Approved Third parties from time to time to carry out or assist with Contract Work where you are satisfied that it is in the interests of your Client to do so, subject to your compliance with the rules on working with third parties in Clause 3 of the Standard Terms. However, you may not entrust an entire Matter or case to Counsel or an Approved Third Party and you may only entrust an entire Matter or case to an Agent if the Agent satisfies all the conditions set out in Paragraph 2.6.

2.6

The conditions referred to in Paragraph 2.5 are that:

(a)

the Agent's work is subject to your supervision;

(b)

the Agent works solely or mainly for you;

(c)

the Agent is integrated into your processes, including Data Protection and equal opportunities, and is shown in your management structure;

(d)

the Agent's work is covered by your insurance;

(e)

you retain responsibility for each Matter or case undertaken by the Agent; and

(f)

Matters and cases undertaken by the Agent are not referred to a separate organisation. 5

2.7

Where you instruct an Agent you may claim payment for the work as if you had carried it out directly. Where you instruct an Agent to carry out services which are covered by a Standard Fee or Graduated Fee, any fees or costs related to your use of the Agent will be included in the Standard Fee or Graduated Fee and may not be claimed separately.

2.8

Unless we have specified otherwise, you may not rely on the use of any Agent or Counsel as evidence of satisfying any of the Service Standards in this part of the Specification.”

(b)

Paragraphs 5.11-5.12 of the Contract Specification which make provision for circumstances where prior authority is necessary:

“Prior authority

5.11

You may apply in writing to us, in advance on a form we specify, for prior authority for incurring an item of costs where:

(a)

that item of costs is either unusual in its nature or is unusually large;

(b)

you propose to instruct a Queen's Counsel or more than one Counsel (see Paragraph 6.60(d));

(c)

prior authority is otherwise required under the Specification; or

(d)

you seek to pay an expert higher rates than are set out in the Remuneration Regulations.

5.12

Where you have been granted prior authority, the item of costs will be allowed on Assessment unless it becomes apparent that the authority was obtained as a result of your provision of incorrect information or circumstances have changed materially between the authority being obtained and the costs being incurred. However:

(a)

any prior authority given takes effect subject to any overall limitation on costs (including the Costs Limit) specified in the relevant Certificate; and

(b)

the fact that you have obtained prior authority for an item of costs must not prevent your seeking to recover the full costs of that item from another party under any relevant inter partes costs order.”

(c)

Paragraph 6.61 of the Contract Specification which sets out the fees payable in respect of experts instructed by providers to deliver services:

“6.61

Where you instruct an expert to deliver services of a type set out in the Remuneration Regulations we will not pay fees in excess of those in Remuneration Regulations unless:

(a)

we consider it reasonable to increase such fixed fees or rates in exceptional circumstances; and

(b)

we have granted prior authority to exceed such fixed fees or rates on such basis.

Subject to such limits where applicable, the amounts claimed for the provision of expert services must be justified on detailed assessment by the court or Assessment by us in the normal way. For the purpose of this Paragraph 6.61, “exceptional circumstances” means that the expert’s evidence is key to the Client’s case and either the complexity of the material is such that an expert with a high level of seniority is required; or the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence. We will pay expert services of a type not listed in the Remuneration Regulations at such rate as we may from time to time determine and in considering the same we will have regard to the rates set out in the Remuneration Regulations and we may require you to provide us with a number of quotes in respect of the provision of the relevant service.””

[Emphasis added]

The Relevant Facts

The underlying litigation is a public-law family case concerning children who are cared for by their father in the United Kingdom. He has become ill. The mother is in Pakistan. One of the issues in the litigation is the mother’s capacity to care for them. She needs to come to the United Kingdom for an assessment but that gives rise to an issue as to her immigration status.

On 31 May 2013, His Honour Judge Hughes, the Honorary Recorder of Milton Keynes, made an order, the relevant parts of which were in these terms:

“1.

The Mother shall file and serve her initial evidence and response to threshold by 4 pm on 5th July 2013.

2.

Leave to the Mother's solicitor to instruct an immigration expert to report on the issue of the mother's immigration status.

(a)

The report is to be filed and served by 5th July 2013;

(b)

A letter of instruction shall be agreed by 6th June 2013;

(c)

The cost of obtaining advice to be shared equally amongst the parties, the Court considering that the Mother's immigration status is a key issue and accordingly the cost of obtaining this advice is wholly necessary, reasonable and proportionate disbursement on the public funding certificates of the publicly funded parties;

(d)

The cost of the report is not to exceed £2,500.

3.

Permission for the Mother's solicitor to disclose the papers from these proceedings to Counsel specialising in immigration matters for the purpose of obtaining immigration advice.

4.

The Court, bundle, further pleadings and all communication be translated fort he mother into Urdu. The cost of translating these documents is a wholly necessary, reasonable and proportionate disbursement on the funding certificate of the publicly funded Respondent Mother.”

On 13 June 2013 the claimant’s solicitors submitted an “application for prior authority” to the LAA to instruct Bindmans LLP as an expert. The work specified on the application form was “expert immigration advice regarding [the claimant] to enter to UK to be assessed by the LA”. Approval was sought for 10 hours work at an hourly rate of £135, which is more than twice the rate of £63 an hour at which lawyers who provide immigration advice are remunerated under the Standard Contract.

In their response dated 25 June 2013, the LAA rejected the application, saying that it was not clear what it was about the immigration status that required assistance from Bindmans. The claimant’s solicitor was asked how they would distinguish the report (if it were commissioned) from Section 32 of LASPO, which excludes services in relation to foreign law. Instead of responding in detail, the claimant’s solicitor sent a pre-action letter challenging the decision dated 25 June. There were then further email exchanges in which the LAA attempted to clarify what the claimant was applying for and why. As a result of these exchanges, it became apparent that Section 32 was not engaged.

Instead, the claimant’s solicitor sent in an email dated 4 July 2013 which identified the following questions on which immigration advice was sought:

“6.1

What is the most appropriate application for the mother to submit to the Home Office in order to secure entry into the UK for the purpose of being assessed as [the child’s] carer? What steps would the mother or father need to undertake for there to be a successful application?

6.2

What is the likelihood of such an application being granted?

6.3

What are the likely timescales to approve the Mother’s application in accordance with your response to 6.1 above.

6.4

Given that Mother did not enter into the UK in 2008 (family visa) would this have an impact upon any application referred to above?

6.5

In light of Mother's outstanding application in Pakistan what steps should she take in respect of that application? Would this have any impact on any future application, if so, how (please detail)?

6.6

Should the further assessment of the mother by the Local Authority prove positive and it is agreed or ordered that it would be in [the Child’s] best interest to be placed with her mother in the UK, what would be the most appropriate application for the mother to make to secure her longer term residence (and if appropriate [the Child’s] sister) in the UK. What further steps could she or the father make to assist in that regard / what further orders could be made/ letters written by the Local Authority to support any such application?

6.7

If you are able please advise as to the likelihood of such an application being granted and the timescale for the same.

6.8

Please comment on any other matters which you consider to be relevant.”

In their dated 5 July 2013, the LAA confirmed that prior authority was refused because the proposed expert was not an ‘expert’, within the meaning of the Standard Contract. The letter also pointed out that, notwithstanding that refusal, the proposed work could still be carried out by Bindmans, because the work fell within the definition of contract [i.e. legal] work by an agent under the Standard Contract, for which the claimant’s solicitors could be reimbursed as if they had carried out the work themselves. Accordingly, it is important to emphasise that this decision did not refuse payment for the expert advice. It manifestly did not; it simply indicated the funding route to £63 an hour. Unhappily, I consider that the Court of Appeal may have been misled on this point when they gave permission to seek judicial review, pursuant to the application originally issued on 9 July 2013.

The Threshold Difficulties

In my view, there are two threshold difficulties with the claimant’s application for prior authority. First, leaving aside the nature of the judge’s order itself (a point I deal with in the next section of this Judgment), I consider that the claimant may not have complied with the order in any event. On any fair reading of that order, the judge had in mind that the immigration expert would be “Counsel specialising in immigration matters”. That is what his order expressly says at paragraph 3. There is no explanation in the papers as to why that part of the order was ignored. When I raised the point with Mr Tear, he claimed it was a typographical error, but there was nothing in the papers to support that claim and the matter was never raised with Judge Hughes for clarification.

There is a second difficulty with the application for prior authority because it did not identify the expert in the section of the form where such details are sought. Instead it just says: ‘Bindmans LLP’. Providing an expert’s report for the assistance of the court is a personal task: it is the responsibility of a named individual. A firm of solicitors cannot act as an expert: in the same way, if the court orders an expert accountant to provide a report, that report has to be provided by an individual, not by ‘Arthur Anderson’ or ‘Deloittes’. Although later in the form there is a reference to a Ms Stanley, there is no explanation of who she is.

For these reasons, I consider that the application for prior authority may not have been made in accordance with the judge’s order and may itself have been flawed. But given that these were points which I raised, rather than matters which had arisen before, I would be reluctant to decide this application on the back of them. However, they do show the dangers of a knee-jerk adoption of the judicial review process in a case which was crying out for a bit of co-operation and commonsense.

This is now linked to a further point. Two days ago, in a statement from the claimant’s solicitor, the court and the defendant were told, for the first time, that Judge Hughes’ order had been complied with, because Counsel’s opinion was going to be provided. It appears that Judge Hughes had given permission for this over a month ago. I agree with Ms Love that this makes my decision today academic, or at least potentially so. It is extremely regrettable that the court should have been put in this position; it makes no difference that counsel’s opinion has not yet been provided.

Expert Evidence in Law

Problems also arise in respect of the precise nature of the judge’s order. The usual position in the civil courts of England and Wales is that (with one obvious exception) expert evidence on the domestic law is inadmissible: see Phipson on Evidence , 17^th Edition, paragraphs 33-83 and 33-85; King v Brandywine Reinsurance Company (UK) Ltd [2005] EWCA 235; and most recently HMRC v Ben Nevis Holdings Ltd [2012] EWHC 1807 (Ch), at paragraph 41. The obvious exception to this rule is where there is a dispute as to foreign law. Expert evidence on foreign law is admissible if the court regards such evidence as important and helpful. That explains why Section 32 of LASPO requires expert evidence on foreign law to be specifically identified and explained before payment is made. But the point does not arise here in any event because the law in question is domestic immigration law.

These principles may suggest that the judges’ order was mistaken. But I do not go that far. The judge was endeavouring to deal with a particular point and thought it sensible for a separate expert’s report to be commissioned. Moreover he was doubtless influenced by the fact that the mother’s immigration status was an ancillary issue. But even then, it seems to me that questions as to the nature and limit of the advice, the use to be made of it, whether it could be challenged, whether it was being provided under CPR Part 35 or not, all ought to have been clarified at the outset.

Again, however, I am reluctant to decide these judicial review proceedings on this issue even though this was a point taken by the defendant, albeit late in the day. I also have in mind the guidance of Collins J in R (T) v LAA [2013] EWHC 960 (Admin). But, as we shall see, this is a point which has a direct bearing on the issue which now arises.

The Standard Contract and Specification

Under the Standard Contract and the Specification, there are three kinds of third parties who can be engaged by the claimant’s solicitors. They are Agents, Counsel and Approved Third Parties. The first two, Agents and Counsel, can only be engaged to carry out Contract Work, that is to say the work which the solicitors themselves have been instructed to undertake. There is no such limit on Approved Third Parties, who are defined as undertaking non-legal work (see paragraph 4(a) above. The definition of Approved Third Parties expressly includes experts.

The rates and fees payable to experts, set out in Schedule 5 to the Remuneration Regulations, do not include any reference to lawyers. That makes complete sense for two reasons. First, the Standard Contract and the Specification envisages that lawyers’ work will be Contract Work and therefore carried out in accordance with the standard rates, not the (higher) rates payable for non-legal work. Secondly, this payment scheme merely reflects the usual position in the civil courts of England and Wales, noted in paragraph 16 above.

Thus, if I assume that the judge intended by his order that one firm of solicitors could instruct another to give expert advice on matters of domestic immigration law, then that immediately gave rise to funding difficulties. Such a situation is simply not envisaged under the Standard Contract or the Standard Specification, for the reasons that I have given.

So in what category would a lawyer fall who was acting as an expert on domestic law (assuming that was a legitimate role)? Plainly he or she must fall within one of the lawyer categories (provider, agent, counsel). Furthermore, he or she could not be an Approved Third Party because, by definition, that is a category of persons only doing non-legal work.

In order to defeat this problem, the claimant’s skeleton argument says that the phrase ‘non-legal work’ cannot mean what it says, but must have been intended to mean ‘work other than giving legal advice or assistance to the client’. This is a strained and laborious construction designed solely to give the claimant what it wants on this application. There can be no justification for it and I reject it. ‘Non-legal’ means what it says. It would exclude all forms of legal work and advice.

In these unusual circumstances, I conclude that it was not irrational for the LAA to conclude that this work was not expert work under the funding provisions. Neither was it irrational to conclude that this legal work could be done by Bindmans as agents. Indeed, save for the issue of fees, no-one has indicated any practical problems with such a course. Although Mr Tear laboured hard to demonstrate the differences between the duties owed by a lawyer acting for a client, and the duties owed by an expert, this ignored his own earlier submission that the immigration issue in this case was a simple, freestanding and ancillary point. How, I asked him repeatedly, could it affect the nature and extent of the advice Bindmans were to give in accordance with Judge Hughes’ order, if they provided it with one fundee’s hat on (agent), as apposed to another (expert)? He was unable to give me an answer.

By contrast, Ms Love made a number of points to demonstrate that, in practice, there would be no such conflict. Amongst other things, she noted that this was a non-confrontational family case; that everyone agreed that this matter was not the substantive issue in the case; that everyone agreed that the mother needed to come to the United Kingdom; and that there was nothing which meant that the advice needed to or might be ‘shaded’ in any way. I agree with those submissions.

Accordingly, the decision refusing to provide funding for Bindmans as an Approved Third Party was neither irrational nor wrong in law. I decline to quash it.

The Recoverable Rate

Now let us assume that I am wrong about that and Bindmans could be regarded as an Approved Third Party under the Standard Contract and Specification. Whilst that would mean that an element of the decision of 5 July 2013 was wrong, it still leaves the defendant’s fall-back position that, as an Approved Third Party, Bindmans would still be entitled to the rate of pay that they would have received for immigration advice to their own clients, as opposed to a rate twice that high.

Before me, the claimant’s skeleton argument was to the effect that, in some way, Bindmans were to be a joint expert, which on its own justified them being paid for the advice at a much higher rate that would otherwise be the case. I do not accept that submission for a number of reasons. First, there is nothing in the judge’s order to say that the immigration expert was a joint expert. The sub-paragraph dealing with funding arises solely out of the fact that all parties in the family proceedings are publicly funded.

More fundamentally still, even if the judge’s order can be read as allowing one firm of solicitors to instruct another to act as joint experts in the case, there is still no reason why the LAA’s decision as to the appropriate hourly rate was anything other than sensible and appropriate. Schedule 5 does not list solicitors or barristers as experts. There are, therefore, no quoted rates for them there. Accordingly, the LAA had a discretion as to the appropriate hourly rate of remuneration. In exercising that discretion, the LAA was required by paragraph 3 of Schedule 5 to have regard to the rates for the experts covered in the table (but there are none) and by paragraph 6.61 of the Contract Specification to the rates set out in the Remuneration Regulations. On that basis, the closest comparator would be the hourly rate of £63 in those Regulations for lawyers who provide immigration advice, which is the rate payable under the Standard Contract.

At one point, the claimant’s skeleton argued that the defendant “would be bound to have regard to the rate at which the proposed expert is prepared to do the work”. The suggestion was that, because this was the rate quoted, it should be paid; that the defendant was bound to pay whatever Bindmans required to be paid. No basis for that submission was put forward, and I reject it. Similarly misconceived was the suggestion that, because of the existence of the order requiring expert evidence, it was an “immaterial consideration” that Bindmans would be paid £63 per hour for providing the same immigration advice under the Standard Contract. On the contrary that was, as I have said, the obvious comparator.

Ultimately the defendant decided that the appropriate rate for Bindmans doing this work was £63 per hour. There was no evidence before the LAA, and none before me, as to how or why that rate was inappropriate if the work was ‘expert’ work; there was nothing to say what the additional work or responsibility might be that justified a doubling of the hourly rate.

Instead, the claimant’s argument came to this: the judge’s order permitted one firm of solicitors to instruct another to act as joint experts on domestic immigration law; that, in consequence, those solicitors could charge twice the applicable rate for the same work simply because the order conferred upon them the status of experts; and that any other conclusion was irrational. For the reasons I have given, I consider that such an argument fails at every stage.

Conclusions

For the reasons set out above, I reject this application for judicial review.

I ought to make two final points. First, there is a suggestion that the defendant’s decision caused delay in the family proceedings. That is wrong. There has been a delay of two months caused by these unfortunate judicial review proceedings, and the refusal to accept the funding route explained by the LAA, but responsibility for that lies squarely with the claimant’s solicitors.

Secondly, I cannot help but comment on the gross waste of public money caused by these proceedings. Even though the claimant’s solicitors were operating on a CFA, there is the cost to the defendant (who will not be able to recover any costs from the claimant) and the costs of the administrative court itself. In addition, all these costs have been spent on an issue which is, in practical terms, academic (see paragraph 15 above). To see public money wasted on a dispute about the rates that lawyers may recover from the public purse is disturbing. Those who seek to defend the significant expenditure of public money on judicial review, in all its forms, would do well to reflect on applications of this kind.