Criminal contracting clawback ignites row

Simmering disputes over the operation of criminal contracting came to a head this week when solicitors began one judicial review against the Legal Services Commission (LSC) and threatened to begin another.The Criminal Law Solicitors Association (CLSA) has applied to review the LSC's decision to award civil practitioners a higher rate of mileage costs than criminal practitioners.The CLSA's chairman, Franklin Sinclair, will decide this week whether to press ahead with a second review of the LSC's decision to make a one-off deduction from criminal solicitors' monthly payments, on the grounds that it is in breach of contract.

This will be brought by his firm, Manchester-based Tuckers.Solicitors have faced financial problems because billings are well below their targets in the contracts (see [2001] Gazette, 19 July, 3).Mr Sinclair said the decision to claw back a substantial sum from as a result of the shortfall is in breach of contract.'It was made clear in the original contract that after four months the LSC would address any negative impact that the contracts had on the criminal firms' cashflow situation,' he said.

'We believe that they have reneged on that agreement made to us.' The contract said the monthly payments made to firms would provide firms with 'regularity and consistency of payment' and would 'allow the Commission to address any negative impact on the firm's cashflow'.

Mr Sinclair said: 'By effectively stopping what amounts to one month's payments for many firms, the LSC's handling of the contract has resulted in exactly the opposite of its original aims.'An LSC spokesman said: 'The LSC denies that there is any breach of contract.

We are acting in accordance with the contract and the monthly payment rules.

In fact, we are being more generous than the rules require by at this stage reconciling to [clawing back] 80% of the value of claims, rather than the 90-95% as we are entitled to do.'Mr Sinclair also said criminal lawyers should consider setting up a fighting fund 'to take on the worst excesses of the government's bureaucracy'.

By Victoria MacCallum