The High Court will decide on Monday whether to grant permission for judicial review of the government’s tender for new legal aid contracts amid questions about whether the parties have sufficient standing to bring proceedings.
An application for urgent consideration and expedition was submitted by a group of 65 firms called Fair Crime Contracts Alliance Ltd and the London Borough of Newham.
Mr Justice Stuart-Smith (pictured) has asked the parties to address questions relating to the standing of both Fair Crime Contracts Alliance Ltd and the London Borough of Newham. The alliance consists of 65 law firms, including successful as well as unsuccessful bidders. The local authority is concerned about the impact of justice in the area.
Stuart-Smith has listed three issues that need to be addressed ‘urgently for the purposes of giving permission’.
A note to the prospective parties states: ’Assuming for present purposes that some at least of the members of FCCA Ltd would have sufficient standing to bring JR proceedings if brought in their own names and right (whether separately or in unincorporated association with each other), does the fact that they bring the proceedings having incorporated the separate legal person of FCCA Ltd and using that company as a vehicle for the bringing of the proceedings mean that permission should be refused because FCCA Ltd does not itself have sufficient standing?
'If the answer to [question 1] is no (ie if the court concludes that the incorporation and use of FCCA Ltd does not preclude the granting of permission), should any (and if so what) enquiry be made as suggested in [the summary grounds of resistance] and/or should the granting of permission be conditional upon or otherwise include a requirement that FCCA Ltd provide security for costs and, if so, in what amount should security be ordered?
’Does the London Borough of Newham have sufficient standing to bring the JR proceedings?’.
Subject to ‘satisfactory resolution’ of the three issues, ‘it is my intention to give permission’, Stuart-Smith says.
Claimants are also required to prepare a schedule identifying, in respect of each procurement area, answers given in the tenders which it is alleged were wrongly marked and upon which the claimants rely for the purposes of the JR claim.
The hearing will take place in the Rolls Building on Monday. A second hearing in relation to 115 procurement law challenges will take place on 16 December.
If Stuart-Smith grants permission for a JR, the note states that the balance of the hearing will be used ’for the formulation of preliminary directions to cover the period up to and including 16 December 2015’.
Karen Todner, managing director of Kaim Todner Solicitors, told the Gazette the alliance was 'pleased' that Stuart-Smith 'has indicated his preliminary view is permission should be granted on the papers'. She said the alliance was 'confident' it could address his three concerns.
A spokesperson for London Borough of Newham said it supported the judicial review 'as we want to ensure that due process has been followed and that the process was adequate, efficient and fair'.
Newham had a high level of need 'and some of our residents are ill-equipped to pay for legal services themselves', the spokesperson said.
'Local firms raised their concerns with us, which we shared when [we] looked at the matter.
'We want to ensure that local firms in the borough, some of whom are specialists in their fields, are available to provide first-class legal services to our residents. In addition, that the outcome of the tender process is the best possible one that will not further reduce the capacity of residents in the borough to access appropriate legal services or impact on long-established local businesses.'
The Legal Aid Agency said it would 'robustly defend' any legal challenges.