Previously on Audit Tales – auditor and on the LAA staff make contradictory determinations and make vastly differing responses when these are pointed out.
This too links with the Tales 1 & 2.
In October 2012 Point of Principle CLA 56 was certified. Essentially this confirmed the position, dating back to the olden days of Devolved Powers; firms would not face cost penalties for the exercise of devolved powers provided the grant was not ultra vires. The language of CLA 56 is that no case should be nil assessed for failure to meet the Sufficient Benefit Test unless the grant was “manifestly unreasonable”.
Save for a minor, non-material, mention in Civil Cost Assessment Guidance – the LAA have made no amendment to any of their guidance materials. (We made a fruitless FoI request on the point).
In the first audit mentioned we placed them on notice both verbally and in writing that the assessment they planned MUST involve the application of CLA 56 – there is a much longer story here which will have to wait. Unsurprisingly the next batch of findings made not a single reference to it. Rather the LAA assessor, “with one woodwork O Level”, substituted her SBT assessment, unavoidably using hindsight, for that of the fully accredited, practicing, supervisor, acting “in the light of his then knowledge”.
I say unsurprisingly as this has been standard, and one must assume deliberate, LAA policy in recent times. Equally standard is their “cut and paste” response when CLA 56 is raised;
“The auditor undertook the assessment with CLA 56 in mind”
It barely needs saying that having CLA 56 in mind is a very long way from considering and recording why the SBT grant was Wednesbury unreasonable, because that is what is required.
Then follows anoter seemingly deliberate policy of chancing a favourable decision from an ICA. Sadly this has been the all too frequent result.
Recently however we sought the advice of the estimable Andrew Keogh of Counsel. If you have not come across him he runs a little know but very useful service know as Crimeline Complete which you might like to explore – they run a free 14-day trial service. On this occasion the ICA fully engaged with the appeal reps and Andrew’s views
“The observation “Although the auditor did not specifically refer to CLA 56 the matter was reviewed with it in mind” tends to suggest an incorrect test was applied as observed in the Appellant’s solicitor’s representations; moreover I agree the LAA’s late acknowledgement of this principle appears an afterthought and that the decision on the principle essentially appears abrogated to me as ICA. Why else are reasons not supplied as to how the auditor applied and overcame the principle with reference to this case? The point of principle establishes an important test as referred to above;”
It takes a very brave or very foolish person to second-guess Mr Keogh on a matter of Legal Aid costs, however the very next ICA to be presented with this advice on appeal was one or the other. Actually we don’t really know as he, again, failed to engage with the point, wrongly substituting his take on the SBT.
Now I agree with the quoted ICA, but accept that he and I and, to a lesser extent AK, could be wrong.
What we unquestionably have is a situation where the appeal process is objectively producing decisions which are diametrically opposed. This is clearly unacceptable except, it would seem, to the LAA. Sadly they are the ones with the statutory duty to ensure that the appeals process operates fairly and consistently.
