Dispute Resolution analysis: Matthew Lohn, senior partner of Fieldfisher, considers the Court of Appeal's decision on the lawfulness of the controversial Quality Assurance Scheme for Advocates (QASA).
R (on the application of Lumsdon and others) v Legal Services Board EWCA Civ 1276,  All ER (D) 71 (Oct).
The Bar Standards Board (BSB), and others, wished to introduce QASA in respect of criminal practitioners. The scheme was approved by the Legal Services Board (LSB). The claimants, who were criminal law barristers, unsuccessfully sought judicial review of the scheme. The Court of Appeal, Civil Division, dismissed the claimants' appeal and held that the scheme was not unlawful.
What is the background to the appeal?
The Court of Appeal has just handed down the second part of its ruling in a challenge funded by the Criminal Bar Association to the introduction of a scheme to assess the quality of court advocates. QASA has from the outset been controversial attracting vocal criticism from members of the bar and in addition some adverse judicial comment. The Divisional Court first considered the matter in late 2013 rejecting the challenge which was renewed before the court (after an initial rejection by the court following an application on the papers). Dinah Rose QC and Tom de La Mare QC appeared pro bono for the appellants.
How did the Court of Appeal approach the challenge to the lawfulness of the QASA scheme?
Before the Divisional Court, the appellants put forward five grounds of challenge to the decision that QASA is lawful. The court considered each ground separately, rejecting all five.
The appellants' first ground was that the Divisional Court erred in its approach to the independence of the advocate and the judiciary. In addressing this ground, the court considered that the LSB did not act unlawfully in concluding that there was no significant risk that QASA would undermine the independence of advocates. They also expressed that if it were necessary for them to decide whether QASA undermines the independence of the advocate, they would conclude that it does not. The appellants' argument that QASA would undermine judicial independence was also rejected.
The next ground of challenge was that QASA provided no scope for advocates to appeal against the content of evaluations or decisions made under the scheme. While the court rejected this contention, it did express the hope that the BSB would clarify its appeals policy.
The court also rejected the appellants' third ground--that the standard of review which the Divisional Court should have applied was the more demanding one of proportionality, rather than Wednesbury unreasonableness. (I address this topic in further detail later.)
Finally, the appellants contended that:
o QASA was an 'authorisation scheme' for the purposes of the Provisions of Services Regulations 2009, SI 2009/2999 (the Regulations), and
o it must therefore be proportionate as required by the Regulations, reg 14.
The court considered that it was not for them to decide whether QASA is an 'authorisation scheme'--this was a question for the Court of Justice of the European Union to resolve. They also considered that it was not for them to decide whether QASA was disproportionate. They were, however satisfied that the LSB was entitled to conclude that QASA was proportionate, and therefore rejected the appellants' final heads of challenge.
What did the Court of Appeal have to say on the issue of a proportionality test in domestic law?
The appellants submitted that instead of the Wednesbury standard of review (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  2 All ER 680), the Divisional Court should have applied the more demanding standard of proportionality, because of QASA's potential to infringe upon fundamental constitutional principles, namely the independence of the advocate and the judiciary.
The court rejected this submission for two reasons. Firstly, they found that applying a proportionality test would be inconsistent with the Legal Services Act 2007, s 3(3)(a) (LSA 2007), which merely requires the LSB to 'have regard' to five principles, including that regulatory activities should be 'proportionate'. The court considered that this did not equate to an obligation for the LSB to promote regulatory activities which are proportionate, and that the five principles were merely aspirational principles, not legally enforceable principles which the LSB is obliged to achieve.
The court's second reason was that QASA does not actually involve any interference with fundamental rights or constitutional principles. As I mentioned above, the court was of the opinion that QASA would not undermine the independence of the advocate or the judiciary. They therefore concluded that the Divisional Court was correct to apply a 'heightened' Wednesbury standard in this case.
How did the Court of Appeal tackle the matter of costs?
Appeal against the Divisional Court's costs order
The appellants contended that because no reasons were given for the Divisional Court's order for them to pay the costs of both the LSB and the BSB, the court should set it aside. They put forward several arguments in support of this contention.
One key argument was that their claim raised issues of public importance, and that in such cases it may be inappropriate to award costs against an unsuccessful claimant, per R (Greenpeace) v Secretary of State for the Environment  EWCA Civ 1656,  All ER (D) 365 (Oct). The public interest points they cited included the potential impact of QASA on the administration of justice, and the fact that their challenge allowed the Divisional Court to identify flaws in the scheme and identify areas for improvement.
The appellants also cited the case of Bolton MDC v Secretary of State for the Environment  1 WLR 1176,  1 All ER 184, which established that unsuccessful claimants should not be ordered to pay the costs of interested parties in addition to those of the defendant, unless the interested parties demonstrated separate issues which justified separate representation. They argued the BSB failed to demonstrate they had sufficiently distinct interests to justify separate representation from the LSB.
Other arguments the appellants raised included the fact that the claimants' lawyers acted on a pro bono basis, and that the litigation was brought in the interests of the whole legal profession, making it unfair to impose all of the costs on one segment of one profession, namely the criminal bar.
The court rejected the appellant's challenge and upheld the original costs order. Citing the case of English v Emery Reimbold and Strick Ltd  EWCA Civ 605,  3 All ER 385, which established that some judicial decisions did not require reasons unless they were specifically asked for, the court rejected the appellants' argument that the Divisional Court should have given reasons for their costs order.
While the court accepted the appellant's argument that the claim raised issues of public importance, they held that this was at most a factor to be taken into account, and agreed with us that it was not exceptional enough a reason to deny us, the successful party, our costs.
The court also agreed with our argument that the protective costs order (PCO) was a relevant consideration, in that a fair balance between the interests of the parties was struck when the level of the PCO was set, and that this militated against the argument that there should be no order for costs against the appellants.
The court was also satisfied that the Divisional Court was entitled to the view that the BSB had sufficiently distinct interests to justify their separate representation, and therefore held that they too were entitled to their costs.
Costs of the appeal
The appellants argued that they should not be ordered to pay the costs of either the LSB or the BSB for the appeal case.
Citing Bolton, they submitted that it would be even more unusual for a second set of costs to be awarded against them at appeal, because by that stage the issues should have crystallised, and the extent to which the BSB had separate interests from the LSB should have been clarified.
The appellants also made two further arguments. First, the fact that the court agreed with them that the appeal system under QASA was unclear justified their bringing the appeal. Secondly, the LSB unnecessarily resurrected a point regarding the perception of lack of independence of the advocate. This amounted to unreasonable conduct, and was an additional reason for the court to make no order for costs.
In response, the LSB argued that the appellants had themselves chosen to appeal. Therefore, there was a presumption that they should bear some risk in relation to costs. The LSB also argued that the PCO was a factor to be construed against making no order for costs, and that taking the exceptional course of making such an order would only impose a burden on the rest of the Bar, given that the LSB is ultimately funded by levies imposed on the legal professions.
The court agreed with the appellants that it was unnecessary for the BSB to be represented at appeal, and as such ordered that they pay their own costs. However, they rejected the two further arguments put forward by the appellants, and held that there was no reason to deny the LSB its costs, given that we successfully resisted the appeal in its entirety. As such, they awarded the LSB its costs up to the level of the PCO.
With the lawfulness of the scheme confirmed, what's next for QASA?
For the moment it may be premature to discuss implementation. The appellants are preparing further submissions seeking to take the case to the Supreme Court. Until the outcome of this further challenge is known, the BSB will have some breathing space before it needs to finally consider the realities of implementation.
Matthew Lohn chairs Fieldfisher's supervisory board and also practises as a lawyer in the firm's public and regulatory law group. He specialises in advising statutory and royal charter regulators and a wide range of non-departmental public bodies on all aspects of their work. He has particular experience in advising on compliance and discipline issues, often within the healthcare or finance sectors. In R (Lumsdon) v LSB, Matthew was instructed by the LSB.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis® PSL Dispute Resolution on the 13th November 2014.
Sign up to our email digest