The LAW Society has little more than a 50 per cent chance of winning a judicial review of Lord Irvine's legal aid cuts, according to its own counsel's opinion.
When the society obtained the opinion from Richard Drabble QC before Christmas, it told the Financial Times that it was confident it could win a court battle to prevent the Lord Chancellor, Lord Irvine from using secondary legislation to withdraw legal aid.
He would be forced to put legislation through Parliament, the society said, delaying his plans by at least a year.
But the opinion, which has been seen by The Lawyer, says that a “realistic appraisal” of the society's chances of a successful judicial review “is 50/50 or slightly better”.
Drabble goes on to joke that the chances of success “are not 75 per cent!” the threshold for legal-aided cases proposed by Lord Irvine while he recognises the “force” of Lord Irvine's argument that the 1988 Legal Aid Act empowers him to use secondary legislation.
Lord Irvine will attempt to withdraw legal aid from personal injury cases this summer, although, as predicted by The Lawyer last month, he has had to shelve his plans to replace legal aid on all other civil money cases such as medical negligence, housing and judicial review.
The society's claims about the prospects of a successful court challenge will have boosted expectations within the profession that it will act.
Only last week, Richard Miller, vice-chair of the Legal Aid Practitioners Group, said: “Even though the changes now proposed are not quite so drastic, we would hope the Law Society will pursue a judicial review if the Lord Chancellor intends to introduce this by secondary legislation and without proper parliamentary scrutiny.”
Ironically, if the Law Society had to bring judicial review on a conditional fee basis, legal expenses insurers would be unlikely to insure a case with such low odds of success.