Strand, London, WC2A 2LL
B e f o r e :
| YVONNE HOSSACK
|- and -
|LEGAL SERVICES COMMISSION
Barbara Hewson (instructed by Hardwicke solicitors) for the defendant
Hearing dates: 27 May 2010
Crown Copyright ©
The Hon. Mr Justice Owen :
"10. If you have breached this contract, we may serve you with a notice specifying the breach. If we consider that the breach is capable of remedy, the notice will require you to remedy it within a specified period, which will not be shorter than 28 days. Otherwise, the notice will require you not to repeat the breach.
11. If a notice requires you to remedy a breach within a specified period and you fail to do so to our reasonable satisfaction, we may serve a notice on you terminating this contract on the date specified in the notice.
12. If a notice requires you not to repeat the breach then, if you do so, or we serve you with two further notices specifying any breaches, we may serve a notice on you terminating this contract on a specified date."
"I am aware that from our previous community care peer review file request 19 of the 20 files had linked files that were still on going as part of a multi-party action.
In our previous file request we required your assistance in identifying any open files on the list of reported work. I understand that this was a time consuming process for you, so to overcome this problem please can you provide us with a list of those parties involved in the multi-party action. This must consist of the client names and their UFN numbers.
Once we receive this information from you we can then eliminate these files when generating a new file list. "
The author requested a response by 16 November.
"It is your responsibility to ensure all files requested reach us by 16 December 2009. Any delay in submitting the files may result in a Contract Rectification Notice.
You must ensure that a minimum of 17 files, along with any linked files are submitted (please refer to the Frequently Asked Questions document enclosed for more detailed information)."
"You mention that we have requested all of your sheltered housing cases. You are concerned about sending these files to the Commission, as these Legal Help files are needed at your office until Private Law Litigation is under way by the end of the year.
This problem occurred in relation to the first file list that we issued on 30 June 2009 and, as a result, you were unable to submit those files for peer review. To overcome this problem, we liaised with you to identify the files that were ongoing as part of this multi-party action. In an e-mail on 16 November 2009, you provided lists of the sheltered housing files that were affected by this action. We excluded all the files mentioned in your e-mail from being selected in your file list in order to ensure that the peer review could go ahead.
As we have taken steps to resolve this problem, I am confused as to why this issue has arisen again in the new file list issued on 25 November 2009. Could you please explain why these files were not flagged up in your e-mail of 16 November 2009? Could you also confirm how many files on this file list are part of the ongoing Private Law Claim?
I should also clarify that we are not requesting all of your sheltered housing cases as stated in your letter. We are requesting that you provide the 20 files listed in the file list along with any closed linked files. For the purposes of peer review, linked files are files linked to the clients mentioned in the file list, rather than the case. You would therefore not be required to provide all the files relating to the multi-party action."
"In view of the timescale that you have set I give you until close of business on 6 January 2009 to reconsider. In my view the LSC's decision to demand files by the 8 January 2009 which are needed for litigation for seriously at risk clients is Wednesbury unreasonable, unlawful and irrational for the following reasons. "
The e-mail went on to assert that the LSC was acting male fides.
"As you know my client is committed to avoiding litigation if possible. What I propose is that the stipulated date (being 08 January 2010) for supply of the 20 closed control work files (plus any linked files) is maintained. If you do not comply with this then in all likelihood a rectification notice will be issued requiring compliance by the end of February 2010. As this is the date you say you can spare the files then litigation should not be necessary. Of course any allegation of bad faith is not admitted. If you do not agree then any court proceedings should be served on the Legal Director at the address quoting the reference above, although again I would remind you of the need to comply with the contractual dispute resolution mechanisms first.
I do consider one needs to get a sense of perspective. My client has simply requested 20 closed files. If you wish to do publicly funded work then you have to take the benefit with the burden. I say burden but a request for 20 closed files is hardly a burden. It is what you agreed when you signed the contract. It is not for my client to design bespoke systems around your practice as you suggest. It is for you to comply with the contract and it is down to you to ensure that you do comply. You would not treat your clients in this way and the contract does not permit you to treat the LSC like this. You are not the only supplier my client has to manage although your reaction to simple requests demands a disproportionate amount of resource for my client, and it tantamount to a refusal to comply. This is simply not acceptable."
"1. This is a contractual dispute, not amenable to judicial review.
2. In any event, no good reason is given why the procedures established by the contract do not constitute an appropriate remedy.
3. Having considered the grounds of defence and the documents exhibited thereto, I can only conclude that this claim is wholly without merit and represents prevarication on the part of the claimant to avoid fulfilling her contractual obligations.
4. In my view, the claim is totally without merit, and the restraining order imposed by paragraph 3 of the order of Judge Mackie on 7 January 2010 is discharged.
5. I am minded to award the defendant its costs of filing the Acknowledgement of Service, summarily assessed at £5,442.50p. If the claimant wishes to resist that order she should, within 14 days of service of the order, file with the court and serve written representations; and the defendant has 14 days from any such service to file and serve a written reply."
"1. Miss Hossack, essentially for the reasons that have been explained to you in the course of this afternoon's hearing, it seems to me it is not in your interests in the end, and certainly there is no arguable case, that the Legal Services Commission has behaved in a way that is contrary to law. What they did was to carry out an audit and disallowed certain matters …
2. You have asserted that they have acted unreasonably in a number of respects …
3. But what does not help is to plunge into litigation and judicial review whenever you feel something has not gone they way you would want it to go, and it is even less satisfactory to indulge in allegations of bad faith and malice when there are no proper grounds for so doing. Furthermore it is almost impossible to establish from the material which you have put in what precisely are the matters upon which you rely. …
4. Certainly the second judicial review was quite unnecessary and was, it is alleged, an abuse of process or close to an abuse of process, and it is, because you already had in being judicial review which effectively covered the issues. All that you wanted to try to do was to stop them going ahead with an audit, and you had no proper basis for so doing.
13. … What I will make clear to you Miss Hossack is that the second judicial review claim … was in my view totally without merit. It is necessary that be recorded. I am not going to make any order against you at this stage. I will tell you that if you do take – and I simply hope that you are not foolish enough to do so – any action against the Legal Services Commission which is regarded by the court as action which has no reasonable chance of success you will find yourself the subject of a civil constraint order."