We have battled the LAA over their refusal to apply CLA 56 on audit for a long time now. This requires, I think, that an auditor can only nil assess a file, for not meeting the Sufficient Benefit Test, after asking the following question:
“Did the firm, in light of their then knowledge act manifestly unreasonably in the discharge of their devolved powers?”
As the estimable Mr Keogh concludes in his advice on the point:
“Wednesbury unreasonabless is, intentionally, a very high hurdle to jump, and an assessor should be slow to interfere with the proper exercise of a solicitors discretion”.
In one recent appeal the ICA fully engaged with the issue and concluded:
“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;”
Most, if not all, of the key auditors and their managers are aware of these points and yet CLA 56 is still not even referred to in the most recent audit finding in front of me. There are striking similarities to this not least that both seem to me clear breaches of the Civil Service Code.
I find it hard to believe that the auditors and their managers have not contacted the LAA Central Legal Team for advice on the matter? I wonder what that advice might have been?
Oh look here is what they say to potential litigants in the Duty Contract endgame:
“Manifest error is a high threshold (equivalent to Wednesbury unreasonableness) and a Court will only intervene in a scoring decision if that decision is so unreasonable that no reasonable person acting reasonably could have made it”.
