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Andrew Lockley is head of professional services at Irwin Mitchell and acted for Rafina.
The reasons given by public bodies for administrative decisions has been one of the most consistent areas of scrutiny by the courts.
The spotlight recently fell on the workings of the Legal Aid Board (LAB) in the case of R v LAB ex parte Rafina. Rafina is a firm of solicitors which challenged LAB decisions about the firm's obligations to supervise unqualified staff. Deciding the challenge, Mr Justice Latham clarified the duty upon the LAB's area committees on costs appeals by solicitors or barristers.
He concluded that there were two stages at which reasons are necessary. The first is when the solicitor is considering whether to ask the area committee to certify a point of general principle for the LAB's Costs Appeal Committee. Secondly, that committee will need to know the conclusions of fact reached by the area committee.
The judge was adopting an approach increasingly popular in the courts, which is to require reasons to be given for administrative decisions even where there is no statutory requirement to do so.
The judge then said the reasons given in this case were inadequate as they did not address the issues of law or the findings of fact. Did that failure vitiate the decision and require him to quash it? It does not follow that, just because there has been a major defect in the proceedings of a decision-maker, certiorari will necessarily be ordered to quash the decision. But, Mr Justice Latham concluded that when solicitors appeal decisions by the area committee, adequate reasons are required in order to provide an effective avenue of appeal.
"That being so, a failure to give any or any adequate reasons will in itself provide grounds for quashing the decision as a nullity."
But, there is another twist in this case. The committee chairman swore an affidavit explaining how the committee had reached its decisions. The judge had to decide whether to exclude that affidavit as being no more than an ex-post facto rationalisation of the committee's thinking. In this case, the judge decided that Rafina had not been prejudiced, and therefore admitted the affidavit.
The judge said the decision-maker must show that there had been no unfairness. The onus this places on the decision-maker is high and this part of the judge's decision seems to be of general application.