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Ministry of Justice admits transcription error wrongly cost leading criminal law firm a legal aid contract
The Legal Aid Agency (LAA), an executive agency of the Ministry of Justice (MoJ), has admitted to a basic transcription error in the marking of a bid from a leading criminal law firm, costing them a legal aid contract.
Edward Fail, Bradshaw & Waterson (EFBW) has provided criminal defence legal services in the East End for over 100 years, and is one of just seven firms ranked in Band 1 for criminal law in London in Chambers & Partners (and are also ranked band 1 in the Legal 500). Yet, in October 2015, EFBW were informed by the LAA that they had been narrowly unsuccessful in their attempt to obtain a legal aid contract for duty solicitor work in Hackney, Newham and Tower Hamlets. EFBW brought legal challenges (represented by Bindmans LLP) against the results of the procurement process in all three areas. Almost 100 other firms brought similar challenges.
The LAA has now admitted that it made a basic transcription error in scoring at least one of EFBW's bids, and that consequently EFBW should have been awarded a contract in Hackney. The admission of such an error follows recent admissions of errors by the MoJ in respect of online forms relating to divorce and prisoner release.
The possibility of such an error was identified by Bindmans in October, but was not addressed by the LAA in pre action correspondence and a formal offer of ADR was not taken up. The error was only then able to be confirmed following limited early disclosure of the marking documents ordered by the Court in respect of EFBW's Hackney and eight other claims. The prevalence of such errors by the LAA (including in respect of EFBW's remaining claims) can only be assessed once full disclosure is made to all claimants. The LAA sought to resist disclosure to other firms, but it was ordered by the Court on 21 December 2015 to be made by late January.
Even after disclosure, the LAA ignored Bindmans' requests to settle EFBW's claim and proceeded to file a defence that admitted the error but failed to acknowledge the consequences. Only after further correspondence, did the LAA acknowledge that if the error had not been made, EFBW should have scored higher than at least one of the purported successful bidders.
The LAA has, however, refused to settle the claim despite the fact that it should never have had to be brought. EFBW has therefore had no choice but to file a summary judgment application today.
Jamie Potter, Partner at Bindmans LLP, and solicitor representing EFBW, said:
"This scheme has been dogged by controversy since first proposed by the former Lord Chancellor, Chris Grayling. The consultation process was exposed as unfair by the first judicial review brought, but the scheme was reintroduced and upheld in principle by the second judicial review. Now permission has been granted in a third judicial review and over 100 procurement claims are underway about how contracts were awarded, with serious allegations of inadequate training, hurried marking and a convoluted moderation process. The error in this case may have been small, but its consequences were extremely serious. The Lord Chancellor and the LAA must look for a way out of this litigation outside of the Courtroom."
Paul Harris, Managing Partner of EFBW, and one of the solicitors that led engagement with the MoJ on behalf of the London Criminal Courts Solicitors Association and the Criminal Law Solicitors Association regarding the scheme during the summer, said:
"The LAA has now admitted a basic transcription error that cost my firm a contract. The number of contracts we are awarded significantly affects the extent to which we are able to continue as a business, including as to the number of staff we can employ. Can the LAA realistically say that such errors have not been made in respect of other bids by us or by other firms? In the absence of such an assurance, surely at least a wholescale review and/or re-marking is required instead of continuing to pursue inevitably costly litigation. Livelihoods should not be undermined by the typing of a 1 instead of a 2 and firms should not be required to bring legal challenges to uncover such errors.
"I implore the Right Honourable Michael Gove MP, who was not responsible for this scheme in the first place, to take a fresh look and find a way out of this mess."
For further information please contact:
Jamie Potter
Partner, Bindmans LLP
E: j.potter@bindmans.com
T: 020 7014 2019
Bindmans Press Office
Paul Harris
Managing Partner, Edward Fail Bradshaw & Waterson Solicitors
E: Paulh@efbw.co.uk
T: 07841 454 165