We have trailed this story a number of times below, but it has taken a little while to arrive at the following final text. This is a client firm currently involved in fairly serious litigation with the Commission, the outcome of which could potentially have far reaching consequences for the profession:
Solicitor’s rights under the General Civil Contract are under threat
Solicitors should be alerted to the LSC’s claim in the High Court which seeks to establish a precedent that the LSC is entitled to avoid the General Civil Contract by way of a Statutory Instrument: The LSC (Disclosure of Information) Regulations 2000 (as amended).
The LSC’ s claim seeks to establish that it can require delivery up of files to audit and assess and retain them under the Disclosure Regulations-i.e. to render the Contract and its audit and assessment procedures ‘void’, if the LSC so chooses.
The LSC issued its claim under the Disclosure Regulations against solicitors after the solicitors issued arbitration proceedings against the LSC-the LSC’s claim seeks delivery up and retention of the solicitor’s evidence against the LSC in the arbitration proceedings.
The LSC’s claim also seeks to establish a precedent that it has a free standing right to delivery up of any and all information, files, documents, etc from all legal aid suppliers under the Disclosure Regulations. In that case, the LSC wouild have no duties under the General Civil Contract and solicitors would have no contractual rights in relation to any action the LSC takes in respect of the files and documents.
If this precedent is established, solicitors will no longer be able rely on the Contract or its dispute resolution procedures to protect their practices.
The LSC also asserts that in accessing documents under the Disclosure Regulations, instead of under the Contract, it can send solicitors’ client files to other firms-thus, to end their practices and potentially place clients’ cases at risk, and solicitors have no contractual rights to oppose this.
Therefore the LSC’s claim asserts it can pick and choose the solicitors to whom it will allow to have contractual rights and those to whom it will not.
All solicitors should be alerted to this threat to the future of their practices. If the LSC’s claim succeeds, the LSC will be entitled to rely on the ‘Disclosure Regulations’ to avoid solicitors’ contractual rights and the Contract’s comprehensive framework which the LSC itself set up.
It would also place solicitors at risk if they use the contractual dispute resolution procedures such as arbitration: because of the threat of the LSC asserting powers under the Disclosure Regulations to obtain possession of the solicitor’s evidence against the LSC-which can scupper the arbitration proceedings and ‘punish’ the solicitor for asserting its contractual rights to dispute resolution.

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2 comments on “NEWS EXTRA

  • Whilst any individual disclosure request must comply with the regulations (and I make no comment as to whether the LSC is being reasonable or not in this case), it cannot be right to say, as you seem to be, that the mere fact a person has entered into a contractual relationship for the provision of legal servives, that other parts of the law become inapplicable as far as the LSC is concerned.
    For example, what if the solicitor were suspected of fraud, are you saying that the police would not be allowed to use its powers under PACE, because those PACE powers of disclosure do not appear in the contract?
    I really fail to see the point of principle you are complaining about here.

  • Andrew
    I know little of the detail in this case and the text is essentially a “guest post” however thanks for your comment and I will make sure the firm in question have seen it.