Regina v Legal Aid Board, ex parte Rafina; Queen's Bench Division, Crown Office List (Mr Justice Latham) 12 February 1998

THE LEGAL Aid Board was entitled to refuse to meet claims made by a solicitor under the green form scheme in respect of work undertaken by a self-employed consultant where that work had been inadequately supervised. Where an appeal against such a refusal was dismissed by the board's area committee, the committee should give its reasons.

The court dismissed an application for judicial review of decisions of the Legal Aid Board arising out of claims made by the applicant firm of solicitors under the green form scheme.

The board became concerned about the claims being made by the applicant under the green form scheme, noting that one person, under the reference AF, appeared to have been working for more than 24 hours a day, and that the claims appeared to be almost pro forma.

The firm's sole principal stated that the work had been carried out by a Mr Farah, and that the hours claimed did not reflect the work carried out by him, but by a number of clerks or associates employed by him on an ad hoc basis, and paid by him from his own earnings. His arrangement with the applicant was that he worked as a self employed consultant and was paid a commission of 35 per cent of the fee income received by the applicant.

Rabinder Singh (Irwin Mitchell) for the applicant; Charles Utley (Legal Aid Board) for the respondent.

Mr Justice Latham said that the board had taken the view that the level of supervision of Mr Farah did not meet the requirements of regulation 20 of the Legal Advice and Assistance Regulations 1989, which provided that:

nothing in these regulations shall prevent a solicitor from entrusting any function under these regulations to a partner of his or to a competent and responsible representative of his who is employed in his office or is otherwise under his immediate supervision.

A block on payments out of the legal aid fund had been placed on the applicant's account. The board had subsequently re-determined the applicant's claims at nil, and she had appealed to the area committee, which had not been satisfied that she had entrusted the work to competent and responsible representatives employed in her office, nor that those persons had been under appropriate supervision. The applicant had asked for more detailed reasons for that decision, but none had been given.

The applicant had then appealed to the Costs Appeal Committee, which had upheld the area committee's decision, holding that the words "employed in his office" in regulation 20 referred to those persons employed by the solicitor under the normal principles of employment, including payment of PAYE; that self-employed persons carrying out some work within a solicitor's office, or outside the office, must be under the solicitor's immediate supervision; and that costs claimed for work undertaken in breach of regulation 20 would be disallowed. That interpretation of regulation 20 was correct.

The applicant had also submitted that the decisions of the area committee and the Costs Appeal Committee should be quashed because of the failure of the area committee to give reasons for its decision. Although there was no statutory obligation upon the area committee to give reasons, it was right that the appeal structure in a case such as the present made it clear that reasons should be given, leaving aside any general principles of fairness.

There were two stages in the appeal process which made the giving of reasons necessary. The first was the point at which a solicitor had to consider whether or not to apply to the committee to certify a point of principle or general importance, and the second was when, in order to make a decision as to the correctness of the area committee's decision, the Costs Appeal Committee would need to know the area committee's conclusions of fact. In the present case, however, no prejudice had been caused to the applicant by the failure to give reasons.