QASA judicial review bid thrown out at High Court

The Criminal Bar Association (CBA) has lost its bid to bring a judicial review of the new rating system for criminal barristers being introduced by the Legal Service Board (LSB) at the High Court.

Dinah Rose
Blackstone Chambers’ Dinah Rose QC

Baker & McKenzie partner Joanna Ludlam instructed Blackstone Chambers’ Dinah Rose QC and Tom de la Mare QC to lead the challenge to the Quality Assurance Scheme for Advocates (QASA) for four CBA members: Rufus Taylor; David Howker QC of No 5 Chambers; Christopher Hewertson; and Katherine Lumsdon. They had argued that the new scheme that intends to assess barristers during live cases was unlawful and undermined fundamental principles of independence.

The claimants also contended that the LSB had exceeded its statutory powers by being too closely involved in the design of the scheme and then approving it. The court said the argument had “no merit”. 

The court also rejected suggestions that QASA breached Article 6 of the European Convention on Human Rights and EU law by providing inadequate appeal rights.

The judgment concluded: “The scheme is lawful, does not contravene European law and falls well within the legitimate exercise of the powers of the LSB and the three regulators that submitted it to the LSB for approval.”

Field Fisher Waterhouse partner Matthew Lohn won the case for the LSB after a £400,000 bill proposed by former advisers Herbert Smith Freehills saw the firm replaced on the dispute (9 October 2013). Lohn instructed 11 KBW’s Nigel Giffin QC to lead 39 Essex Street’s Duncan Sinclair to withstand the challenge brought by four CBA members.

All claimant counsel worked pro bono on the case, in contrast to the contentious bill entered by the LSB counsel earlier last year.

The General Council of the Bar, Solicitors Regulation Authority (SRA), Ilex Professional Strandards and Law Society were also involved in the case as interested parties.

The news comes at a difficult time for the criminal bar, which is currently fighting against cuts to the national legal aid budget (6 January 2014).

The court said: “We recognise that those who fulfil the vital public service of criminal advocacy feel under very considerable pressure at the present time. First, the professions are facing real concerns regarding criminal legal aid based upon the levels of remuneration that the Ministry of Justice is proposing across the board and, in particular, in relation to the most challenging cases.”

But the judges suggested that advocates should be required to give more background about cases and that judges should be allowed to decline to complete the forms if they believed that it would not be fair to do so.

They also praised the claimants’ counsel for taking on the case pro bono, saying: ”In particular, we wish to record our gratitude to the solicitors and counsel for the claimants for acting pro bono, and with their customary skill and determination, in the best traditions of the legal profession.”

Responding to the ruling, LSB chairman David Edmonds said: “The High Court’s judgement has vindicated the integrity of the LSB’s process and the detailed work put in beforehand by the BSB, SRA and IPS.

”Over five years, the LSB has sought to raise standards. Those who need access to justice have a right to expect that regulators and advocates alike, acting in the public rather than self- interest, will constantly seek to assess and improve the quality of legal services.

”Let us now see that put into practice, as implementation proceeds in the measured way set out by JAG, allowing for its continued development and evaluation in the light of practical experience and the helpful guidance offered by the court.” 

For the claimants Rufus Taylor; David Howker QC of No 5 Chambers; Christopher Hewertson; and Katherine Lumsdon

Blackstone Chambers Dinah Rose QC, Tom de la Mare QC and Jana Sadler- Forster, 23 Essex Street’s Mark Trafford, Doughty Street Chambers’ Charlotte Kilroy instructed by Baker & McKenzie partner Joanna Ludlam

For the defendant Legal Services Board

11 KBW’s Nigel Giffin QC and 39 Essex Street’s Duncan Sinclair instructed by Field Fisher Waterhouse partner Matthew Lohn

For the first interested party Bar Standard Board

Fountain Court’s Timothy Dutton QC and Tetyana Nesterchuk instructed by Bevan Brittan

For the second interested party, the SRA

Fountain Court’s Chloe Carpenter instructed by Kingsley Napley

For the fourth interested party, the Law Society

Matrix Chambers’ Helen Mountfield QC and Chris Buttler instructed by Natalie Turner

The Third Interested Party, Ilex Professional Standards, did not appear and was not represented