Last month the Lord Chancellor suffered another defeat in the High Court in the case of R v The Lord Chancellor on application of the Law Society  EWHC 2094 (Admin) which concerned a judicial review brought by the Law Society, into the legality of a reduction in criminal legal aid payments under the Litigators Graduated Fees Scheme.
The case is interesting for a number of strands of legal argument which repay consideration because of their wider application. The first is how the court dealt with substantial expert evidence which had been obtained by both sides, without a nod to obtaining permission to rely upon it under part 35 CPR.
36. The use of expert evidence in judicial review proceedings, as in all civil proceedings, in the High Court is governed by CPR Part 35. CPR 35.1 restricts expert evidence to “that which is reasonably required to resolve the proceedings.” It follows from the very nature of a claim for judicial review that expert evidence is seldom reasonably required in order to resolve it. That is because it is not the function of the court in deciding the claim to assess the merits of the decision of which judicial review is sought. The basic constitutional theory on which the jurisdiction rests confines the court to determining whether the decision was a lawful exercise of the relevant public function. To answer that question, it is seldom necessary or appropriate to consider any evidence which goes beyond the material which was before the decision-maker and evidence of the process by which the decision was taken – let alone any expert evidence.
37. The classic statement of the extent to which evidence other than evidence of the decision under challenge is admissible in judicial review proceedings is that of Dunn LJ in R v Secretary of State for the Environment ex parte Powis  1 WLR 584, 595. The categories in that case can be summarised as follows:
a) Evidence showing what material was before or available to the decision-maker;
b) Evidence relevant to the determination of a question of fact on which the jurisdiction of the decision-maker depended;
c) Evidence relevant in determining whether a proper procedure was followed; and
d) Evidence relied on to prove an allegation of bias or other misconduct on the part of the decision-maker. 38. Although these categories are a useful and well-established list, it would be wrong to treat them as if they were embodied in statute or as necessarily exhaustive. That is particularly so as public law has developed in ways which were not in contemplation when the Powis case was decided. In R (Lynch) v General Dental Council  EWHC 2987 (Admin);  1 All ER 1159 Collins J was prepared to allow some extension of the possibility of admitting expert evidence beyond the Powis categories in a case where a decision is challenged on the ground of irrationality. The judge accepted that, where an understanding of technical matters is needed to enable the court to understand the reasons relied on in making the decision in the context of a challenge to its rationality, expert evidence may be required to explain such technical matters.
40. The same point in principle applies, in our view, to a challenge based on irrationality. A decision may be irrational because the reasoning which led to it is vitiated by a technical error of a kind which is not obvious to an untutored lay person (in which description we include a judge) but can be demonstrated by a person with relevant technical expertise. What matters for this purpose is not whether the alleged error is readily apparent but whether, once explained, it is incontrovertible.
41. The corollary of this is that, as was recognised in the Lynch case, para 18, if the alleged technical error is not incontrovertible but is a matter on which there is room for reasonable differences of expert opinion, an irrationality argument will not succeed. This places a substantial limit on the scope for expert evidence. In practice it means that, if an expert report relied on by the claimant to support an irrationality challenge of this kind is contradicted by a rational opinion expressed by another qualified expert, the justification for admitting any expert evidence will fall away.
42. Two further issues are raised in these proceedings on which, in our view, expert evidence could in principle be admissible. The first is whether the consultation procedure was unfair, in particular because information of substantial importance to the decision was not disclosed. As discussed below, it is relevant in determining that issue to have regard to the potential impact of the proposal put out for consultation. Expert evidence may assist in showing this. We also think it relevant to consider whether consultees were prejudiced by the non-disclosure of significant information. Where, as in this case, the information in question is of a technical nature, and the claimant says that, had the information been disclosed, it would have wished to make technical submissions in response to the consultation, expert evidence may be admissible to illustrate the points which might have been made and to show their materiality.
43. The other issue raised in this case on which expert evidence could in principle, depending on its content, be admissible is the argument that the decision to reduce legal aid fees constituted an unlawful interference with the right of access to justice.
44. If a party to judicial review proceedings wishes to rely on expert evidence in support or defence of the claim, it is essential that an application for permission to do so and for appropriate consequential directions should be made at the earliest possible opportunity. The points made in this regard in BAA Ltd v Competition Commission  CAT 3, para 82, are equally applicable in judicial review proceedings generally. In the ordinary course, any such application by the claimant should be made when its grounds for bringing the claim are filed so that it can be considered by the judge who makes the decision whether to give permission to proceed with the claim. In the present case the Law Society points out – and we accept – that it was not until the Lord Chancellor filed his detailed grounds of resistance and written evidence on 27 April 2018 that his reliance on the LAA analysis and the significance of that analysis for the claim became clear. We accordingly accept that, in so far as the expert evidence of Professor Adams responds to that analysis, the need for that evidence could not reasonably have been identified sooner.
Turning to the issue of consultation
67. The essential requirements which any consultation process must satisfy were summarised by Lord Woolf MR, giving the judgment of the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan  QB 213, para 108:
“To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken. “
These criteria were approved by the Supreme Court in R (Moseley) v Haringey London Borough Council  UKSC 56;  1 WLR 3947, para 25, where Lord Wilson (who gave the lead judgment) endorsed them as “a prescription for fairness”.
68. As that description indicates, although proper consultation also serves wider public interests such as ensuring public participation in decision-making and improving the quality of decisions, the duty to consult is generally conceived as an aspect of the common law duty of procedural fairness. In the Moseley case Lord Wilson characterised fairness as “a protean concept, not susceptible of much generalised enlargement” (para 24), and the point has often been made that the application of the duty is highly sensitive to the facts and context of the particular case: see e.g. R (EasyJet Airline Co Ltd) v Civil Aviation Authority  EWCA Civ 1361, para 51; the London CCSA case, supra, para 34; R (United Co Rusal plc) v London Metal Exchange  EWCA Civ 1271;  1 WLR 1375, para 28. As such, we do not think it useful to examine the facts of cases cited in argument on which each party sought to rely. The ultimate test has been expressed as whether the consultation process was so unfair as to be unlawful: see R (Baird) v Environment Agency and Arun District Council  EWHC 939 (Admin), para 51; the London CCSA case, para 34; R (West Berkshire District Council) v Secretary of State for Communities and Local Government  EWCA Civ 441;  1 WLR 3923, para 60.
The court continued after further drawing on authority:
73. In principle and consistently with these authorities, in judging whether non-disclosure of particular information made a consultation process so unfair as to be unlawful, relevant considerations in our view include:
(1) The nature and potential impact of the proposal put out for consultation;
(2) The importance of the information to the justification for the proposal and for the decision ultimately taken;
(3) Whether there was a good reason for not disclosing the information; and
(4) Whether consultees were prejudiced by the non-disclosure.
Finally, and perhaps unsurprisingly, the Unison case was prayed in aid:
125. The Law Society’s remaining ground of challenge is that the Decision violated the common law right of access to justice. The Law Society relies on what is now the leading case of R (UNISON) v Lord Chancellor  UKSC 51;  3 WLR 409 in which seven Supreme Court justices unanimously held that a Fees Order made by the Lord Chancellor prescribing fees payable for bringing and proceeding with claims in employment tribunals and appeals to the employment appeal tribunal was unlawful. The essential reasoning of the Supreme Court was that the statutory power to prescribe tribunal fees had to be interpreted in the light of constitutional principles including the constitutional right of access to justice. So interpreted, the relevant statutory power did not authorise the making of an order if there was a real risk that its effect would be to prevent some people from having access to courts or tribunals or if it impeded such access to a greater degree than was justified by the legitimate objectives of the order. Lord Reed (who gave the judgment of the court) concluded that the Fees Order infringed these principles and was therefore ultra vires because it set fees at a level which some people could not reasonably afford and which also made it futile to bring many claims in view of the level of the fees and the prospects of recovering them.
126. Counsel for the Law Society argued that these principles are applicable in the present case. They submitted that, by analogy with article 6 of the European Convention on Human Rights, the common law right of access to justice includes the right of a person charged with a criminal offence who cannot afford to pay for legal assistance to receive legal assistance paid for by the state when the interests of justice so require. They submitted that section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which imposes an obligation on the Lord Chancellor to ensure that legal aid is made available in accordance with Part 1 and the powers to make regulations conferred by that Part of the Act must be interpreted in the light of the rights of criminal defendants to publicly funded legal assistance. On this basis they argued that the 2017 Regulations are unlawful because there is a real risk that they will effectively prevent some people charged with criminal offences from receiving effective legal representation or in any event will have a disproportionate effect on the right of access to justice of some criminal defendants.
In the event this ground of challenge, though perhaps the most interesting, did not get anywhere. Instead the Lord Chancellor lost on the basis that the consultation was unfair and the decision irrational, due to flaws in the statistical methodology applied in making the decision.
This case, along with a number of other similar cases, forms a useful template, when a party is considering challenging any costs reforms enacted by secondary legislation: and its application is therefore not limited to reforms to criminal legal aid.