The government has retreated in the face of a tidal wave of litigation over new crime duty contracts by postponing their start date until April – with a contingency for a further delay should it be needed.
The Legal Aid Agency had previously insisted that it planned to enter into the new contracts on January 11 next year, despite litigation from unsuccessful bidders. But it said today that both the new contracts and the fixed-fee scheme for police station and magistrates' work will now come into effect on 1 April.
There is a 'backstop date' of 10 January 2017 for the contingency extension 'in the unlikely event' that a further delay is required. It said this was to ‘ensure that the LAA is in a position to maintain the duty provider service, if for any reason, it is not possible to enter into the new contracts with the intended time scales'.
In a statement announcing the delay, the LAA reiterated that 519 out of 520 successful bidders have indicated their intention to accept the new duty contracts.
But it added: 'A number of unsuccessful bidders have chosen to legally challenge our decisions. There are now automatic injunctions on us proceeding with the new contracts in a number of procurement areas until those legal challenges are resolved. Our first priority is to ensure criminal legal aid remains available to those who need it.'
The Criminal Law Solicitors' Association said it was ‘not at all surprised’ by the delay of the two-tier contracts due to the 'serious flaws' in the scheme.
Zoe Gascoyne, its chair, said: ‘The association has always expressed opposition to two-tier and warned of the risk of litigation. We also welcome the postponement of the new fee structure which we maintain will cause the collapse of many firms and damage stability.’
Before the announcement, the Ministry of Justice was seeking to have challenges to its procurement process for new criminal legal aid contracts grouped together to simplify its defence.
The High Court was due to hear an application for a group litigation order and/or common case management for the procurement law challenges that have been issued in 69 out of 85 procurement areas next Wednesday.
In a document seen by the Gazette but not confirmed by the MoJ, the ministry said it has logged 111 issued claims affecting 69 procurement areas.
‘We anticipate that more proceedings may still be issued as we had received letters before action which in total sought to challenge 272 decisions,’ the document states.
‘The defendant considers that it is necessary to have a group litigation order to manage these claims, which give rise to common questions of case management and law and also have a common factual background.’
Listing issues that will arise in all the claims, the ministry cites the ‘disclosure of successful bids and the need for a confidentiality ring (see Amaryllis v HM Treasury  EWHC 4955)’.
It says the litigation may also involve successful bidders ‘being either interested parties or defendants, given the impact any remarking may have on the scoring of bids and allegations from unsuccessful bidders that successful bidders did not meet tender criteria’.
Procurement law challenges were issued before contracts were signed, which means the agency is subject to an automatic suspension under the Public Contracts Regulations 2006 in those 69 areas.
London firm Bindmans has confirmed that it is acting for 10 claimants across 24 procurement areas.
International firm Trowers & Hamlins said it had been instructed to represent Kaim Todner, SA Law Chambers, IBB Solicitors, VHS Fletchers, Ringrose Law, QualitySolicitors JW Hughes & Co, Stephen Rimmer, Russell & Russell, Chris Bennett & Co, Owen & Sharpe, Middleton Scanlan and Waters Moore. The challenges cover 24 procurement areas.
Judicial review proceedings were issued on Thursday by the newly formed Fair Crime Contracts Alliance and the London Borough of Newham, Karen Todner, managing director of Kaim Todner Solicitors, confirmed.
Concerns about the bidding process were first raised after former LAA insider, Freddie Hurlston, last month told the Gazette that the contracting process had been flawed. Today a second whistleblower appeared to back up Hurlston’s claims.
Speaking to justice website LegalVoice, Paul Staples, a bid assessor at the agency, described the tender process as ‘shambolic and unprofessional’.
Here is a Law Society heat map of the origin of the challenges to the tender process: