Challenges to the government’s tender process for criminal legal aid contracts took an unexpected twist this morning, with the lord chancellor and unsuccessful bidders uniting on how the litigation should be managed.

The lord chancellor is fighting a two-pronged attack over new legal aid contracts – a judicial review sought by the Fair Crime Contracts Alliance and 115 individual procurement law challenges sought in accordance with part 7 of the Civil Procedure Rules. 

Debating case management before Lord Justice Laws (pictured) and Sir Kenneth Parker at the Royal Courts of Justice this morning, all parties spoke in favour of proceeding with a ‘JR-plus’ model, in which the judicial review and part 7 claims will be heard together by a single judge in the Technology and Construction Court.

The Technology and Construction Court deals with cases involving public procurement while judicial reviews fall within the Divisional Court’s jurisdiction.

However, Lord Justice Laws said he was ‘not attracted by the JR-plus solution’.

He told the court: ‘It would appear there is no jurisdiction in the Divisional Court to hear part 7 claims. If the JR-plus solution is adopted, the JR will have to be heard via a single judge. I do not think we are content with that.’

Laws said there was ‘good reason’ why the Technology and Construction Court should deal with the procurement law challenges, ‘but what we have here is a challenge on a systemic basis to the lord chancellor’s implementation of, like it or not, an important policy. It seems certain to me that is best adjudicated by this court’.

Laws said he and Parker needed to know, ‘with a degree of precision’, what common issues would be litigated in a ‘JR-plus’ and ‘JR-alone’ hearing.

‘We’re not very clear they would be, at the moment, significantly different.’

Laws said he thought there was a way in which ‘our concerns as to the proper role of the Divisional Court and the parties’ concerns that favour a JR-plus solution might be reconciled’.

Laws and Parker would hear the judicial review, Laws suggested. A selection of part 7 cases would then be heard immediately by Parker.

‘Judgment in the JR would no doubt be reserved,’ Laws said. ‘Judgments would be given together.'

However, following joint discussion between counsel for the lord chancellor and the claimants, Jason Coppel QC said the benefit of a JR-plus model ‘is that one tribunal would hear all of the evidence which is relevant to all of the claims’.

Coppel, who is representing 12 of the claimants, said: ‘If one considers all of the claims, including part 7, in a round, one gets the broadest range of the biggest pool of complaints from which the test issues may be drawn.’

After nearly half an hour deliberating with Parker, Laws told the court just after 1pm that the JR ‘in this case should in the public interest be heard in the Divisional Court’.

Laws adjourned the directions hearing until Monday ‘so that parties can give the matter consideration to the way in which the [whole litigation] is best managed in light of our decision.

‘We may go down the route that [Parker] would hear selected part 7 claims immediately following the JR.’

Laws said he and Parker were not excluding the possibility of further part 7 directions being given on Monday.

‘We will decide on Monday altogether what directions are needed,’ he said.