Time for a legal aid truce

The Legal Aid Agency’s announcement that it was postponing the start of its new criminal legal aid contracts will have surprised no one, especially once the scale of litigation the agency was facing became clearer.

What is interesting, however, is the timeframe it has given itself should its plans to introduce two-tier contracts take longer than expected. Current crime contracts will be extended from 11 January to 31 March, with a ‘backstop’ date of 10 January 2017 ‘in the unlikely event that a further extension beyond 31 March is required’, the agency says.

On Wednesday the High Court will hear an application for a group litigation order or common case management for the procurement law challenges that have been issued in 69 out of the 85 procurement areas. However, the agency is believed to be anticipating that more proceedings will be issued.

Then there’s the not-too-small matter of judicial review proceedings issued by the Fair Crime Contracts Alliance and London Borough of Newham over the tender process itself.

The ministry hopes to start the new contracts on 1 April. But what if it is unsuccessful in some or all of the challenges? Will it have to re-mark the tender applications? What happens if an originally successful firm finds itself without a contract? I’m guessing some will want to recoup the cost of getting their firms ready for 11 January, when the contracts were originally due to start, (I know of one firm that has already invested thousands of pounds in IT and infrastructure) and seek damages.

What has the MoJ got to lose?

So here’s a thought. How about using the time, effort and money involved in fighting the litigation to find new ways of achieving the savings the Ministry of Justice is seeking and put them into practice, let’s say, by 31 March?

The ministry already has a headstart after it was presented with four options by practitioner groups during the summer boycott. A reminder of what those four options are:

• Remove payment for early cover on the basis that it is ‘woefully inadequate’. The LAA must look long-term towards changing the legal aid application process so that firms can self-certify applications to expedite the process;
• Review court duty solicitor cover. Some courts have more cover than needed;
• Increase efficiency by transforming summary justice and adopting proposals put forward by Sir Brian Leveson’s efficiency review earlier this year so that more cases are concluded at the magistrates’ court at first hearing;
• Review the litigator fee scheme in respect of multi-defendant cases so greater payment is made to solicitors representing second (50%), third (30%) and fourth (20%) defendants, subject to professional obligations, so firms have a greater incentive to represent a number of defendants in a case.

The ministry could then conduct a review late next year, which can influence any further (if necessary) course of action.

Criminal defence solicitors have shown they’re up for a fight, no matter what their circumstances. Now that the ministry has extended current contracts, it can afford to call a truce. What has it got to lose? It potentially stands to lose a lot if it doesn’t.

Monidipa Fouzder is a Gazette reporter