In respect to 3 defendants the respondent magistrates' court transferred legal aid to a new firm of solicitors. The applicant challenged that decision by way of judicial review.

 

On receipt of the applicant's pre-action protocol letter the clerk to the justices decided to try and resolve the matter himself by re-opening the hearing, having declared the decision of the justices to have been vitiated by them not having followed the appropriate regulations. The justices clerk then re-affirmed the original decision.

 

Held:

1. The justices clerk lacked jurisdiction to act in the way he did.
2. In respect to 2 of the legal aid transfers, they were unlawful. The third transfer was lawful.
3. It would not be appropriate to quash the decisions (see para 40-43) due to the passage of time.
4. The court granted a declaration that the transfers were unlawful.

Andrew Keogh comments on the case as follows: 

 

So, what was the point you might ask? Whilst the applicant firm did not get the cases back, this judgment serves as an important warning shot to courts who are charged with deciding these delicate issues.

 

At para 27 the court says:

 

"Regulation 16 does not expressly impose a requirement that the application be made in writing. However, the requirement in paragraph (1) that "any such application shall state the grounds on which it is made" seems to me to contemplate an application in writing. It will normally be appropriate for the court to require a written application for the transfer of legal representation, although it may be that in exceptional circumstances it may consider an oral application. More fundamentally, however, the represented parties seeking the transfer of the representation order must provide a full explanation of the "substantial compelling reason" which is said to justify the transfer. Simply to assert there has been a breakdown in the relationship will not be sufficient. The court needs to be fully informed in order that it may investigate whether there has been a genuine breakdown for a reason which would justify a transfer of the of the representation order, as opposed, for example, to the mere giving of proper but unpalatable advice."