Litigation over the government’s award of new criminal legal aid contracts will not be ‘straightforward’, the High Court heard yesterday during a lengthy hearing on how 115 procurement law challenges and a judicial review should be managed.
Hearing the lord chancellor’s application for a possible group litigation order in the Royal Courts of Justice for nearly three hours, Mr Justice Stuart-Smith (pictured) said the litigation would require ‘exorbitant effort by everyone’, including himself and court staff.
‘We have got to find a balance between imposing unnecessary work on people while at the same time ensuring all litigation is resolved in a quick way,’ he said.
Sarah Hannaford QC, representing the lord chancellor, told the court that 115 part 7 claims and one judicial review had been issued. The exact number of letters before action had not been recorded, but around 142 responses to letters before action were sent.
Hannaford said her client was ’very keen’ to move into the new criminal contracting regime and had been ’extremely reluctant’ to delay its commencement from 11 January to 1 April.
Dealing with the challenges, Hannaford said, was a ‘monumental task’. But the defence had ’no particular axe to grind’ on which route for case management should be taken - a group litigation order or ’simple, more generalised’ case management option.
Stuart-Smith did not grant the group order sought by the lord chancellor. Instead, claimants must identify five ’lead’ cases by Friday. Should they be unable to reach agreement, the cases will be chosen randomly by the judge. The lord chancellor can pick three ’lead’ cases. The lord chancellor must plead defences to the eight cases in the next 21 days. Stuart-Smith stayed the other claims.
The choice of lead cases ’may be dictated’ by the ability to finance them or how they are to be financed, Stuart-Smith said.
’At the moment, I do not see this as either necessarily or most likely resulting in a trial as such,’ he added. ’I’m not wedded to the idea of using a test case.’
A Guidance for Assessors document used in the awards stage of the tender process must be disclosed to all parties in the next seven days, Stuart-Smith ruled. Additional disclosure of underlying documents in relation to the marking and moderation of tender applications was ordered for the claimants’ lead cases.
Particulars of claim for all cases must be filed within 14 days subject to any other extension granted.
The next hearing is scheduled for 16 December.
Stuart-Smith said he had ‘not even begun’ reading papers in relation to judicial review proceedings issued by the recently established Fair Crime Contracts Alliance and London Borough of Newham.
Hannaford told the court the lord chancellor ’will be putting in an objection’ for an application of urgent consideration of the JR prior to the part 7 claims.
The second hearing ’will address the state of the JR as well’, Stuart-Smith said.