The Legal Aid Agency breached its duty to be transparent and clear when it failed to disclose its 'calculator' for assessing counsel's fees for what is expected to be a complex fraud trial, the High Court has ruled.

Giving the lead judgment in Ames v The Lord Chancellor, which was handed down and published yesterday, Lord Justice Holroyde said he could not understand why the agency declined to disclose the calculator. 'The LAA, in our judgment, plainly owes a duty of transparency and clarity in relation to the operation of the "calculator". Even without that duty, we would have expected the LAA to want advocates to know the basis on which their fees were being assessed in [very high cost cases], not to keep it a secret. It would surely be advantageous to the LAA, in its negotiations with advocates, to be able to demonstrate why and how the use of the "calculator" has led to a particular fee offer.'

The claimant in the case has been charged by the Serious Fraud Office with fraud allegations. (The judgment states that he pleaded not guilty to all charges last year.) He sought judicial review of the LAA's final offer in relation to counsel's fees after the counsel of his choice and the agency were unable to agree on remuneration.

In September 2017, the agency offered fees for leading and one junior counsel, totalling £359,400, based on an estimated 70-day trial, 65,850 pages of served material, and unused material comprising 15,000 pages in hard copy and 50,000 pages of disclosable digital material. Later that month the offer was increased to £650,500 for two counsel.

In November 2017, a £1,015,200 offer was made to reflect additional material but counsel was 'dissatisfied'. Holroyde said the trial judge at a November 2017 hearing referred to the 'enormous quantities' of material held by the defence and 'referred to the fact that counsel had so far done some 500 hours of preparation work but did not yet have legal aid, a position which he described as "absurd"'.

In January 2018, the LAA said in a letter that it was under no obligation to disclose the ‘calculator' and that it contains confidential information.

However, Lord Justice Holroyde said failure to disclose the calculator introduced a 'serious procedural unfairness' and that confidential information could be redacted. There were 'significant errors' in the data inputted into the agency's calculation.

The High Court said the agency’s decision was irrational but not illegal. It set aside the final offer made in December 2017 and ordered the agency to disclose the 'calculator'.

A spokesperson for the Legal Aid Agency told the Gazette: 'We will carefully consider the content of the judgment in order to determine appropriate next steps.'