Hereward & Foster Llp & Anor v The Legal Services Commission [2010] EWHC 3370 (Admin)

Tuesday December 21st, 2010
Neutral Citation Number: [2010] EWHC 3370 (Admin)
    Case No: CO/9498/2010

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

    Royal Courts of Justice
Strand, London, WC2A 2LL
    21/12/2010

B e f o r e :

THE HON MR. JUSTICE BURNETT
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Between:

  HEREWARD & FOSTER LLP
DEBBIE ADLER

Claimants
  - and -

  THE LEGAL SERVICES COMMISSION
Defendant

____________________

Helen Mountfield QC and Nick Armstrong (instructed by Hereward & Foster) for the Claimants
Martin Chamberlain and Sarah Love (instructed by Michael Rimer, Legal Services Commission) for the Defendants
Hearing dates: 9th and 10th November 2010

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    The Hon Mr Justice Burnett :

    Introduction

    1. Hereward and Foster LLP ["the Solicitors"] is a firm of solicitors based in the London Borough of Newham which was unsuccessful in its bid for a contract with the Legal Services Commission ["LSC"] for ‘new matter starts’ in the immigration package of publicly funded civil work. The tender exercise was subject to the Public Contracts Regulations 2006 ["the 2006 Regulations"]. The Solicitors had also originally been unsuccessful in their bid for a community care contract (as part of the social welfare package) but a re-evaluation by the LSC of the successful bids revealed that some bidders had insufficient staff to service the new matter starts they had secured. As a result, a surplus became available and some were awarded to the Solicitors. This is a rolled-up application for permission to apply for judicial review of the decision to refuse to award a contract for immigration services to the Solicitors, and to maintain that decision on appeal. The reason why the Solicitors were unsuccessful in their bid was because they failed to score the maximum points available for what has been described as ‘the supervisor attendance criterion’. It formed one of seven criteria by which bids from those who satisfied the mandatory requirements of entry into the bidding process were evaluated. A total of eight points was available under this head, but the Solicitors scored only five. That made the difference between success and failure in the bid.

    2. The Solicitors contend that the inclusion of the supervisor attendance criterion in the tender evaluation indirectly discriminated on grounds of sex against the firm and its sole female supervisor for immigration work, Deborah Adler. She works part time. The Solicitors say that they were disadvantaged in the process because they employed a part time female supervisor. Indirect sex discrimination is said to arise because more women work part time than men. Deborah Adler is said to have been disadvantaged because the criterion put her under pressure to increase her hours and put the Solicitors (of which she was a partner) under financial pressure to employ additional staff or forgo the best chance of securing the contract. Additionally, the Solicitors argue that the LSC failed to consider the potential impact of this criterion on women and as a result breached its general equality duty under section 76A of the Sex Discrimination Act 1975 (“the 1975 Act”). The LSC disputes these contentions and also argues that the claim has been brought long out of time. It submits that there is no good reason to extend time particularly in the light of the potential prejudice to third parties and the detriment to good administration that would flow from granting any relief, were the Solicitors to succeed in their claim.

    The Facts

    3. The Solicitors are a long-established practice based in Barking Road, Canning Town. They provide a range of services, much of it legally aided, and have been undertaking immigration work for about 15 years. When the bid for immigration work was made the Solicitors were a partnership with three partners. Deborah Adler was one and Sarah Lerner another. Deborah Adler undertook, amongst other things, immigration work and acted as supervisor for that aspect of the practice. Sarah Lerner was the supervisor for community care work. The third partner was a man, who practised in other fields. Since the rejection of the tender for immigration work, the Solicitors have constituted themselves into a limited liability partnership, with each of the former partners becoming members. At the time of the alleged discrimination, however, they remained a partnership. The Solicitors employ eight further solicitors, nine paralegals or trainees (who are caseworkers in the language of the LSC tender process) together with administrative and other support staff.

    4. Both Deborah Adler and Sarah Lerner work part time. It is unnecessary to recite in detail the working arrangements of Sarah Lerner, because the challenge to the social welfare package element of the tender process has fallen away. It is sufficient to record that she officially works four working days a week (although regularly finds herself in the office on the fifth). She juggles child care arrangements with her partner in respect of their two adoptive daughters who are aged seven and four. They were placed with Sarah Lerner and her partner in February 2008. Deborah Adler is a single parent with twins who are 10 years old. She is contracted to work 28 hours a week (the equivalent of four working days) but generally spreads her work over five days. In common no doubt with many working in a professional capacity, she regularly works for longer than her contracted hours. She estimates that she works an average of 32 hours a week and is available on the phone or via blackberry when she is away from the office. Her practice is to leave the office early at about 15.30 on three days. That allows flexibility in child care arrangements. It would be extremely difficult to work full time at the moment and, she observes, her hours were also agreed to allow a fair profit share to be fixed. Deborah Adler has provided considerable detail about the arrangements she has in place to enable her children to go to and from school and also to undertake extra-curricular activities. Both are preparing for the 11+ and will also do common entrance examinations, for which they receive tuition away from their current school. Flexibility in her working patterns, together with part time work are both clearly features that deliver an advantage to Deborah Adler and her children.

    5. The Solicitors encourage flexible working for their staff. An example has been given of a solicitor in the personal injury department adjusting hours to reflect family commitments before returning to full time work when the children were older. None of this is unusual or unexpected.

    6. The working of the immigration section at the Solicitors is described by Deborah Adler in this way:

    “The immigration team is comparatively small. At the moment I am the only solicitor and the only supervisor in the team. There is one caseworker who started in July 2010 and does full-time immigration work as well as spin-off work e.g. welfare benefit and NASS advice. Previous to that a trainee solicitor worked in the same role. She has remained in the firm but is now training in another area of work. She has kept her current immigration case load and takes on about 1 new case a week in immigration. At the most therefore I am responsible for supervising 1 caseworker and 1 trainee solicitor.” (original emphasis)

    That detail was provided in her first witness statement dated 10 October 2010. It was augmented in a second statement of 1 November. Deborah Adler readily agreed the importance of supervision and described how she supervised the two fee earners she had earlier identified. She would see the caseworker three or four times a day. She reads all the letters written by that caseworker. She sees the trainee once or twice a day. She reads all her advice letters (but not routine letters) and any applications she has drafted. She reviews files and has regular meetings with the fee earners. The file reviews are done on an unannounced and spot-check basis. She also ensures that the fee earners keep up-to-date with the acquisition of legal knowledge. Deborah Adler explains how accessible she is as a supervisor, in particular because she is present in the office for almost full time, has a small number of people to supervise and can be contacted by her two subordinates at any time. It is, in any event, unusual for clients to be given appointments after 15.00 and she is always in the office (subject to holidays, illness or other professional duties) at that time. Deborah Adler is particularly alert to the need for the fee earners to comply with deadlines, both for making applications to the Secretary of State and for appeals to the First Tier Tribunal, which all who toil in this field of law know to be critical. She describes as ‘absurd’ the LSC’s view that accessibility for supervision purposes can only be achieved by constant physical presence.

  1. In October 2008 the LSC published a consultation document which proposed a fundamental overhaul of the way in which civil legal aid was to be provided in England and Wales. It was entitled ‘Civil bid rounds for 2010 contract’. It was a common feature of the arrangement proposed for most of the different packages of legal services in respect of which contracts were to be let that the tender process would impose a number of conditions, or minimum entry requirements, which those seeking contracts were obliged to satisfy in order to succeed. The bidders would be in competition for new matter starts (broadly a number of new cases). The entry conditions were directed to various matters designed to establish a threshold of competence and expertise which had to be crossed before the bidder could provide services under a contract. It is unnecessary to rehearse their content, save to mention that one of the proposed threshold criteria identified in the consultation document concerned the ratio of supervisors to caseworkers. It was proposed in the event that the number of bidders who satisfied those conditions between them sought more new matter starts than were available, their bids would then be scored against additional criteria (formulated differently for each package). The new matter starts were allocated according to the scores achieved. A feature of the scheme apparent from the outset of the consultation process was that the bidder with the highest score would be allocated all the new matter starts it had bid for, with those remaining going to the next highest bidder and so on until the new matter starts were exhausted. A maximum number of new matter starts per full time caseworker was specified. The scheme had refinements to cater for ties between different bidders.  
  2. Following the consultation exercise a response was published by the LSC in June 2009, and work continued to refine the criteria which would be applied to each of the different areas of work in respect of which contracts were to be awarded. The consultation responses included comment upon the ratio of supervisors to caseworkers initially proposed by the LSC. Nobody appeared to disagree with the proposition that supervision is an important factor in guaranteeing high quality services. But there was a range of views about where to fix the ratio because it was perceived that, by a side wind, fixing it too high or too low could favour small or large organisations. The LSC originally proposed that there should be a ratio of one supervisor to four caseworkers. Following the consultation process, this was relaxed to 1:6. The consultation document made it clear that in calculating the ratio ‘full-time equivalents’ was the appropriate measure. Neither the consultation document nor the response document referred to the supervisor attendance criterion. That was worked up by the LSC after June 2009. The evidence of Kerry Wood, Head of Central Commissioning at the LSC explains how that occurred. In developing the criteria that would distinguish between bidders all of whom had satisfied the entry conditions, in addition to ensuring an open competition process, the LSC was concerned to ensure high standards of service provision. The importance of supervision as a contributing factor to the maintenance of high standards was referred to in the consultation document in the context of the supervision ratio. It was put in this way:  

    “It has been the LSC’s experience … that effective individual supervision is the single most important guarantee of quality services for clients… (para 4.38)

    The role of supervisor is seen as crucial to ensuring the quality of advice delivered by a provider.” (para 6.43)

    These expressions of opinion were informed by the results of quality assessments of existing suppliers conducted by the LSC. A recurring feature of those who did not fare well in such assessments was a lack of adequate supervision. The LSC introduced Peer Reviews in 2005 whereby a panel of specialist lawyers undertook reviews scored against objective criteria. Inadequate supervision was a problem regularly picked up. A particular concern of the LSC in immigration work generally had been that inexperienced advisers were being used in complex cases. In a guide published in September 2008, the LSC suggested that supervision checks of such advisers should take place ‘immediately after the first meeting, when the application is about to be submitted, when a decision is received, when an appeal is about to be submitted etc.’

  3. Many consultation responses suggested, for various reasons, that the original proposal of a ratio of 1:4 should be relaxed, but also identified a concern that the use of a specified ratio was a crude tool which said nothing of the quality of the supervision being provided. Suggestions were made for criteria that might be formulated by reference to the number of years’ experience enjoyed by a supervisor. Consultees also raised questions about remote supervision and problems thrown up by a supervisor working across multiple offices. The first response of the LSC to this aspect of the consultation was to change the ratio to 1:6. More generally, it indicated that it would develop further selection criteria. The process by which that was done was explained between paragraphs 32 and 41 of Kerry Wood’s statement dated 18 October 2010:  

    “32. We decided on the final selection criteria following a number of meetings with representative bodies. Meetings were held on 7 October 2009, 4 November 2009, 12 January 2010 and 3 February 2010 at which we discussed the SWL criteria (including the criteria for community care). The minutes of the meeting of 7 October and the agendas to the meetings of 12 January and 3 February 2010 are exhibited to this statement.

    33. We met with the Immigration Representative Bodies Group on 17 November 2009, at which we discussed the selection criteria for the immigration tender. The minutes of this meeting are exhibited. Those minutes record that the only issue which was discussed at the meeting was the forthcoming bid round. The selection criteria were discussed in general terms. It was the representative bodies who suggested that having an on-site supervisor for 100% of the time was an important measure to ensure quality.

    34. The representative bodies who were involved in the above meetings were: the Law Society, Law Centres’ Federation, Legal Aid Practitioners Group, Citizens’ Advice, Advice Services Alliance, Advice United Kingdom, and Immigration Practitioners’ Association (who attended the meeting on 17 November 2009).

    35. Following our published consultation response of June 2009 and in the light of these discussions, we decided in January 2010 to give preference, or a higher points score on the selection criteria, to firms which had a supervisor in the relevant category of law present on-site for a greater proportion of the time that the office was open.

    36. Giving preference to firms which have a supervisor physically present more of the time seemed to the LSC to be a sensible and appropriate criterion on which to distinguish between bids in competitive areas. As I have said above, supervision is one of the strongest indicators of quality and effective supervision is important. Having a supervisor physically present would ensure that caseworkers are better supported while conducting their work.

    37. From time to time, a client will present with issues that require urgent action – perhaps because of an impending time limit or the proposed action of a third party. In such cases a less experienced caseworker will benefit from immediate access to a more experienced supervisor present in the office, with whom they can confirm the action required. Remote supervision, or the possibility of contacting a supervisor who is not actually at work on the day, are less reliable and effective ways of providing the support required.

    38. Furthermore, the LSC has a longstanding preference for supervision to be available in the office for caseworkers, which we would expect all providers to be aware of. The LSC introduced in 2002 the Specialist Quality Mark (“SQM”), a quality assurance standard for legal aid providers. The SQM was devised by a working group which included experienced practitioners and practitioner representative groups.

    39. To be a Quality Marked supplier, a provider must meet certain requirements. The latest (September 2009) SQM includes requirements concerning supervisors (in section D3) and concerning the operation of the supervisory roles (in section D4), with definitions to explain what will fulfil the requirements.

    40. The SQM requirements and definitions indicated clearly that the LSC sees availability of supervisors as being important to the effectiveness of supervision. Requirement D3.1 (Named category supervisor’) is that “A named supervisor is available to supervise caseworkers in each specialist category of law your organisation offers.” This requirement is qualified in the definitions section. One of the qualifications concerns the requirement of ‘availability’ to supervise caseworkers:

    “Accessibility

    The supervisor must be present in the office for sufficient time to demonstrate effective supervision (see D4.2), and must be able to demonstrate control over the quality of work for the rest of the time (e.g. by scheduling specific supervisory sessions, by delegating correspondence checking to a deputy, or by being accessible by telephone or e-mail.”

    (Emphases in original; my underling)

    41. Having decided to prefer firms with greater on site supervision, we had to decide how to award points in relation to this specific criterion. Unless we specified or gave greater weight to applicant organisations which had supervisors who were present for a greater proportion of time, there was a risk that an organisation with a supervisor who was only available on site for a small proportion of each week could claim that they had an onsite supervisor. We also wanted to reward those firms with the greatest supervisor availability (i.e. those prepared to offer by October 2010 supervisor cover for 100% of the relevant opening hours). Accordingly, we arranged the scoring to give greatest points to organisations which were able to provide supervision for 100% of the time that the services are being provided.”

     

    10. In their evidence, the Solicitors expressed some scepticism concerning the sequence of events outlined by Kerry Wood and also of her appearing to attribute to the representative bodies the suggestion that a criterion should be developed by reference to the time-related presence of the supervisor. Kerry Wood further explained the position in her second statement. The original idea for the supervisor attendance criterion came from the LSC and was included in a draft version of selection criteria circulated in advance of the meeting scheduled for 17 November. The bands and percentages were different from those which eventually appeared in the tender documents. It was as a result of views expressed at the meeting that the importance of reflecting the distinction between full time supervisor presence and anything less emerged. The LSC re-weighted the scoring to reflect the sentiment that having an on site supervisor for 100% of the time was important. Despite some criticism of this evidence, it was not disputed that for the purposes of these proceedings it provides the explanation of why the criterion was developed to assist in the process of distinguishing between different bids that satisfied the conditions of entry into the list of those who could be considered for a contract.

    11. On 30 November 2009 the immigration contract process opened. The LSC published a document called ‘Information for Applicants’. The bid round closed on 28 January 2010. The Information for Applicants set out the practical arrangements for the bidding process and identified all the criteria against which bids would be evaluated together with the scores that would be applied to any given criterion. The supervisor attendance criterion was identified. It worked in this way:

    All ITTs Preference will be given to those Applicant Organisations who will employ an Immigration Supervisor based and regularly working from the office related to the Individual Bid for a greater proportion of time that that Office is open Marked out of 8

    Points will be awarded to an Individual Bid as follows:
    - The Applicant Organisation employs an Immigration Supervisor who will be based and regularly working from the Office in the Access Point 100% of the time (8 points)
    - The Applicant Organisation employs an Immigration Supervisor who will be based and regularly working from the Office in the Access Point 80 – 99% of the time (5 points)
    The Applicant Organisation employs an Immigration Supervisor who will be based and regularly working from the Office in the Access Point 60 – 79% of the time (3 points)
    - The Applicant Organisation employs an Immigration Supervisor who will be based and regularly working from the Office in the Access Point 50 – 59% of the time (2 points)
    - The Applicant Organisation employs an Immigration Supervisor who will be based and regularly working from the Office in the Access Point less than 50% of the time (0 points)

     

    12. Bids were required to be made on-line and could be amended up to the closing date, even if first submitted earlier. The Solicitors submitted their bid on 26 January 2010. In the section dealing with this criterion, the Solicitors indicated that an immigration supervisor would be present, in the event that a contract were awarded, for between 80% and 99% of the time. That reflected the hours that Deborah Adler expected to work as a supervisor in October 2010 if a contact were awarded. In turn the underlying premise was a continuation of her current practice, but with no attempt to make any changes within the firm either to cover the difference or adjust the working patterns of those she supervised to ensure that they engaged in immigration work during her working hours. In the result only five points out of eight were scored against this criterion. The Solicitors’ total score was 30. The total score available for the immigration package was 38. The Solicitors scored no points in respect of a criterion relating to employment of a ‘level 3 caseworker’. Had such a person been employed at the time of the bid five points would have been scored, and one point would have been scored if an existing caseworker had applied for accreditation as such. No legal complaint is made about that aspect.

    13. The Solicitors were aware when they submitted their bid for the immigration package that the maximum score that could be achieved, given their answers to the questions relating to these two criteria, was 30 out of 38. It was thus clear that they were disadvantaged by the criterion about which they now complain.

    14. For the purposes of the tendering exercise the country was divided into procurement areas. Much of London fell within one procurement area for the immigration package. The information provided on instructions by Mr Chamberlain, who appears for the LSC, was that 137 different offices of legal service providers have been allocated immigration new matter starts following the tendering exercise. He put it that way to reflect the fact that a number of those providing such services have more than one office, so the total number of providers is smaller. Nonetheless, the figures demonstrate that there is no shortage of suitably qualified solicitors ready, willing and able to provide legal services within this speciality in London. Each procurement area was allocated a number of new matter starts for which those taking part in the competitive tender process were bidding. The number of new starts available was made known in the tender documents. Any organisation making a bid was obliged to indicate how many new matter starts it sought. Within the immigration package the assumption upon which the LSC and bidders worked was that one caseworker could deal with a maximum of 150 new matter starts in a year.

    15. The precise breakdown of the scores achieved by the successful bidders is not before the court. However, Miss Mountfield explained the Solicitors’ understanding of the position (without contradiction) as being that one group of bidders jointly scored the maximum or close to it and was allocated all the new matter starts they had sought. The next group scored less but also received all the new matter starts for which they had bid. Then a larger group scored 33 points. The bidders in that group did not receive all the new matter starts for which they bid. Subject to a number of new matter starts which were held back to cater for successful appeals within the tender process, the group had the remaining new matter starts distributed amongst them.

  4. It is apparent that the failure to score the maximum eight points for supervisor attendance made the difference between success and failure in the bidding process. Of course, it is not possible to tell whether, if the criterion had been completely absent, the Solicitors would have succeeded. It was only one of seven criteria and the permutations for scores within those remaining were numerous. What can be said is that if the criterion had not been there, or alternatively a different scoring scheme had been in place, the Solicitors might have been successful. Whether they would have been would have depended upon how any changes in either the criteria or the scores attached to them might have affected the other bidders for immigration work in London.  
  5. The Solicitors raised no question about the supervision attendance criterion before they completed their tender and did not challenge it at the time, whether by way of judicial review or under the 2006 Regulations on the ground that the application of the criterion was discriminatory. This appears to have resulted from a combination of two factors. First, they thought that they would be successful in their bid despite losing three points against this criterion, coupled with the loss of five by reference to the ‘level 3 caseworker’ criterion. Deborah Adler explains that she was aware that a number of solicitors in East London had dropped out of providing immigration work and that she faced a high level of demand. Sarah Lerner put it this way:  

    “We did not expect from all that we had been told that the LSC would want us to lose any contracts and assumed that it would retain sufficient discretion to ensure that we did not do so.”

    That view is not one which is consistent with engagement in a competitive tendering exercise and is, in any event, contradicted by what was stated by the LSC in the consultation document:

    “We cannot guarantee contracts to those already delivering services.”

    Secondly, Deborah Adler indicates that she assumed that any problems with the criteria would be taken up by representative bodies, something she considers was a general understanding across the profession. She believes that no challenges to criteria applicable to any of the packages were brought by solicitors who might be disadvantaged by them before the outcome of each exercise was known. Deborah Adler has exhibited an entry from a blog dated 10 September commenting on the Solicitors’ proposed legal action. The posting was left by an anonymous male from Rotherham who commented that he considered the selection criteria for the ‘immigration removal centre tender’ to be ‘horrendously unfair’, ‘wholly irrational and … biased’. That is a different package from the one this application is concerned with. Be that as it may, he thought that the criteria applicable for that package were obviously in conflict with the 2006 Regulations. He said that he had discussed the matter with the Law Society but was told not to challenge them immediately, despite his certainly that he would fail in the tender, but to await the outcome of the process and challenge only if unsuccessful. If such advice was given it was bad advice, because the 2006 Regulations enable a challenge to be brought when a potential bidder is at risk of suffering loss, and then apply a short timescale within which a challenge may from brought from the moment that the risk is apparent. The Solicitors belief is that had they asked the Law Society for advice they would have been told to wait. No such advice was sought.

  6. As is well known, the family law package was the subject of judicial review proceedings brought by the Law Society against the LSC, decided by this Court on 30 September 2010 (Law Society v Legal Services Commission [2010] EWHC 2550 Admin). That case resulted in the need to re-run the tendering exercise for that package. The ‘family and housing’ package is also being re-run following that decision. No such general challenge was brought to the immigration package. There has not been any representative challenge to the supervision attendance criterion on the basis of gender inequality, or any other basis, in respect of the immigration or any other package. The parties are aware of one other firm of solicitors which is seeking to raise a challenge on this basis. 
  7. When faced with the disappointing news that the bid had been unsuccessful, the Solicitors took advantage of an internal appeal provided by tender process. Three grounds were advanced.  

    i) The wording of the supervisor attendance requirement was ambiguous. Ms Adler’s presence for 28 out of 35 hours (often more) with accessibility by phone and blackberry coupled with the quality of her supervision should count as 100%.

    ii) As a result of suggested ambiguities in the draftsmanship a discretion should be exercised to treat the supervision as sufficient to score maximum points.

    iii) The criterion indirectly discriminated on grounds of sex and the LSC had failed to have due regard to the equality duty under section 76A of the 1975 Act.

  8. In rejecting the appeal, the LSC dismissed any suggestion that the criterion was ambiguous and affirmed that the correct score on the information provided had been applied. The Solicitors no longer suggest otherwise. The decision maker considered that the attempt to give further information to support a suggestion that for practical purposes a score based on 100% could be given, would amount to allowing a late amendment of the bid. Discrimination was denied. On those aspects the LSC said this in the letter of rejection:  

    “I do not accept that the criteria are discriminatory as suggested by the Applicant. The purpose of the Terms and Conditions of Tender is to ensure that the Applicant organisations are dealt with consistently and fairly. The LSC is bound to comply with the Public procurement regulations 2006 which also require the LSC to treat tenderers fairly and consistently.

    I consider that allowing the Applicant to amend its tender response at this stage would be allowing it to now improve its tender, and in the context of the Selection Criteria stage of a competitive tender process, would not be fair on other applications.”

    The date of the confirmation of the original decision was 5 August 2010. Following an exchange of correspondence these proceedings were issued on 7 September.

  9. Deborah Adler and Sarah Lerner have produced a range of materials to support the broad proposition that the proportion of women working part time is greater than of men, both in respect of the general economy and also within the solicitors’ profession. A news release from the Office of National Statistics dated 26 September 2008 stated that women were more likely to work part time than men, particularly if they have dependent children. A fact sheet produced by the Law Society presented the findings of a survey in 2005/6 of 1,120 practitioners, drawn from private practice and the corporate and public sectors, provides some insight into working practices. On part time working it said:  

    “A higher proportion of women than men held a part time contract (17% compared to 4% respectively). Women working part time in private practice and in commerce or industry worked, on average, longer hours than part time males in the same sector. Women working in the government sector were more likely to work part time (23%) compared to women in private practice (16%) or in commerce or industry (13%). Women working part time were, on average, younger (42 years) than men (58 years), suggesting that part time working is associated with different life stages.

    Of the male solicitors working part time in private practice, over half were consultants and one-third were assistant/associate solicitors. No equity or salaried male partners worked part time. Men working part time were found only in small and medium sized firms, with less than 10 partners. Of women working part time, two-thirds (67%) were assistant/associate solicitors, 13% were equity partners and 7% were salaried partners. Women working part time were most likely to be in 2 – 4 partner firms and least likely to be working in sole practices.”

    The same fact sheet provides evidence of hours worked by the part time respondents to its survey. The median working hours of male part timers in private practice was 21, but of women 30. For those on full time contracts it was 50 and 45 respectively.

  10. The Solicitors also draw attention to evidence from the Fawcett Society and Equality and Human Rights Committee that women disproportionately fail to reach the higher echelons in commerce, industry and the professions, and that flexibility in working arrangements is important to allow women to remain at work and to make progress professionally. A recent document prepared for the Legal Services Board in July 2010 entitled ‘Barriers to the Legal Profession’ notes that women solicitors are disproportionately represented in small firms and are more likely to work in lower remunerated fields of legal endeavour.  
  11. Kerry Wood gives evidence of the impact of the supervisor attendance criterion on the outcome of bids. She explains that many bidders who scored the maximum available points against this criterion employed part time supervisors. There was never any question of requiring a bidding organisation to employ a single supervisor full time. The whole basis upon which supervision was considered was ‘full time equivalents’. Within the community care package, which has fallen away for the purposes of this challenge, 101 organisations had part time supervisors but put in place arrangements for October 2010 which enabled them to score eight points. 46 others, including the Solicitors, did not and scored fewer than the maximum available points. Overall the criterion,  

    “rarely made a critical difference to the outcome of the tender. If the supervisor attendance criterion had been removed 11 organisations that were unsuccessful would instead have received a contract – whilst four that were successful would lose out.”

    24. To maximise the score against this criterion any bidder whose practice did not provide full time supervisor cover had a range of options available. Given that no single supervisor had to be available full time, the first option was to engage a supervisor to cover some, or all, of the shortfall. If recruiting further supervisor cover resulted in additional man hours available for immigration work (or any package to which the criterion applied), then it would be open to the organisation to increase the new matter starts it bid for. Alternatively, an existing caseworker might be trained up to supervisor level. Making adjustments to the distribution of time used by the caseworkers for different aspects of their work was another option.

    25. There is no evidence which suggests that the Solicitors thought through any of the available options, whether these or others, before making their bid. Indeed, in terms Deborah Adler says that because they did not predict that the criterion would have an impact on their receiving a contract, they made no such arrangements (second statement, paragraph 24.a). In her first statement she indicated that making arrangements for full time supervision cover ‘would not work for us either in business terms or in terms of client care’. Because she is contracted for 28 hours a week but regularly works 32 (and can be contacted whilst out of the office) it would have been ‘pointless’ to employ another supervisor for client care purposes. In her second statement she repeated that there was no business case for employing a full time or part time supervisor and there was nobody to train up.

    “The issues here are complex, reflecting the low profit margins that apply in this area of work, the need to strike a difficult balance, and having an eye to the future where a person is recruited but then wants to reduce their hours. The short point is that this is not an option that could have worked for us even had we the ability to predict any of this.”

    The Arguments

  12. Miss Mountfield developed her argument on Ground 2 first (section 76A of the 1975 Act) followed by Ground 1 (indirect sex discrimination) and finally dealt with the question of time. Mr Chamberlain advanced his arguments on time first, followed by those on indirect discrimination and finally those relating to Section 76A of the 1976 Act. Each placed the strongest argument first. I propose to discuss Ground 1 first followed by Ground 2 and conclude with the question of time.  

    Ground 1: Indirect Discrimination

  13. The Solicitors’ argument on discrimination has two aspects. First they suggest that as a partnership of three, with two female partners, the criterion was indirectly discriminatory against them all as partners, because a female controlled or dominated partnership would be less likely to satisfy the criterion. Miss Mountfield developed this argument by reference to ‘the gender of the majority of managerial control’ of a bidding entity. She expanded the definition to include bidding entities ‘with a majority of female control/ supervision’ (paragraph 76 of the claimants’ skeleton argument). Secondly, the criterion is said to discriminate indirectly against Deborah Adler on grounds of gender because it places her in the difficult position of making choices which full time supervisors avoid having to make.  

    Section 1 of the 1975 Act provides:

    “1. Direct and indirect discrimination against women

    (1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if—

    (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

    (b) he applies to her a requirement or condition which he applies or would apply equally to a man but -

    (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

    (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

    (iii) which is to her detriment because she cannot comply with it.

    (2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if—

    (a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

    (b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but—

    (i) which puts or would put women at particular disadvantage when compared with men,

    (ii) which puts her at that disadvantage, and

    (iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

    (3) Subsection (2) applies to—

    (a) any provision of Part 2,

    (aa) sections 29 to 31, except as they relate to an excluded matter,

    (b) sections 35A and 35B, and

    (c) any other provision of Part 3, so far as it applies to vocational training.”

    28. Within section 1 of the 1975 Act there are two definitions of indirect discrimination (viz. section 1(1)(b) and section 1(2)(b)). The second definition, which is wider than the first, was inserted and then later amended as part of the implementation of various European directives. The result was that the wider definition applied to discrimination governed by European law, and the narrower to areas which were purely domestic. Miss Mountfield submits that whether by reference to the narrow or wide definition, the criterion constitutes indirect discrimination which cannot be justified. Mr Chamberlain submits that the criterion survives scrutiny by reference to either.

    Section 13 of the 1975 Act provides:

    “13. — (1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a woman—

    (a) in the terms on which it is prepared to confer on her that authorisation or qualification, or

    (b) by refusing or deliberately omitting to grant her application for it, or

    (c) by withdrawing it from her or varying the terms on which she holds it.

    (2) Where an authority or body is required by law to satisfy itself as to his good character before conferring on a person an authorisation or qualification which is needed for, or facilitates, his engagement in any profession or trade then, without prejudice to any other duty to which it is subject, that requirement shall be taken to impose on the authority or body a duty to have regard to any evidence tending to show that he, or any of his employees, or agents (whether past or present), has practised unlawful discrimination in, or in connection with, the carrying on of any profession or trade.

    (3) In this section—

    (a) “authorisation or qualification” includes recognition, registration, enrolment, approval and certification,

    (b) “confer” includes renew or extend.

    (4) Subsection (1) does not apply to discrimination which is rendered unlawful by section 22 or 23.”

  14. In Legal Services Commission v Patterson [2003] EWCA Civ 1558, [2004] ICR 312, the Court of Appeal concluded that where a sole practitioner applied for an LSC franchise it was her application for the purposes of section 12(1)(a) of the Race Relations Act 1976, which is the analogue of section 13 of the 1975 Act. The position of partners in a firm of solicitors was no different, as was explained in paragraph [81] of the judgment of Clarke LJ: 

    “The position of the partners in such a firm is no different in principle from that of Ms Patterson. Take the position of Mrs Kelly and her firm. As we see it, the application would be in the name of the firm but, for the reasons explained in Kelly v Northern Ireland Housing Executive [1989] AC 428, it would in law be the applications of each of the partners of the firm. The application would be to confer the authorisation on the partners jointly and severally and it would be their application. Section 6 of the Interpretation Act 1978 provides that, unless the contrary intention appears, the singular includes the plural, just as it provides that the masculine includes the feminine. In our opinion no contrary intention appears; so that ‘him’ in section 12(1)(a) includes them and ‘his’ in section 12(1)(b) includes them. Or put another way, the effect of the section is to makes it unlawful to discriminate against each applicant in such a case.”

    The supervisor attendance criterion is applied to the entity making the bid for a contract. This decision of the Court of Appeal was drawn to the attention of the claimants on the eve of the hearing as a result of the researches of Miss Love. In consequence Miss Mountfield amended the claim with leave, and without opposition, to contend that the tender for immigration services from the Solicitors was an application by the then three partners of the firm, including Deborah Adler. The letting of a contract amounted to an authorisation or qualification conferred upon the partners for the purposes of section 13 of the 1975 Act. The terms on which the LSC was prepared to let the contract were indirectly discriminatory. Section 13 of the 1975 Act falls within Part 2. Thus the wider definition of indirect discrimination applies. Mr Chamberlain accepts that the reasoning in Patterson applies to section 13 of the 1975 Act. Indeed, that was the reason that he brought it to the claimants’ attention. Therefore, he accepts that if the supervisor attendance criterion was applied to Deborah Adler as a partner of the firm and (a) it puts or would put women at a particular disadvantage when compared with men; (b) puts Deborah Adler at that disadvantage; and (c) cannot be shown to be a proportionate means of achieving a legitimate aim, then its inclusion constituted an act of indirect discrimination contrary to sections 13(1)(a) and 1(2)(b) of the 1975 Act. Miss Mountfield, for her part submits, that the claim ‘now proceeds principally under s13 and s1(2)(b).’

  15. It is common ground that the subsequent reconstitution of the partnership as a limited liability partnership is immaterial because the alleged act of discrimination occurred whilst the partnership was a traditional firm. In Patterson, the Court of Appeal expressed no view about how its reasoning would impact on an individual or individuals who operated though a corporate entity.  
  16. The claim had previously been advanced by reference to Section 21A of the 1975 Act which provides:  

    “(1) It is unlawful for a public authority exercising a function to do any act which constitutes –

    (a) Discrimination, or

    (b) Harassment within the meaning of section 4A(1) and (2), (5) and (6).

    (2) In subsection (1) –

    (a) “public authority” includes any person who has functions of a public nature (subject to subsections (3) and (4)), and

    (b) “function” means function of a public nature.”

  17. It is common ground between the parties that the LSC is a public authority and in letting contracts for civil legal aid it performs a public function. Section 21A does not fall within any of the provisions identified in section 1(3) as subject to the wider definition of indirect discrimination but is governed by the narrower definition in section 1(1)(b). Miss Mountfield advanced a subtle argument in writing, by reference to the underlying European directives, to the effect that even in this context indirect discrimination should be given its wider meaning by reading down section 1(1)(b) to achieve compatibility with European law. As a result of the way in which the argument was developed by Miss Mountfield and Mr Chamberlain I shall consider the question of indirect discrimination by reference to section 1(2)(b). In doing so some understanding of how the supervision criterion bites on the partnership and also on Deborah Adler is needed.  
  18. Miss Mountfield’s references to ‘majority female control’, in my view, are wide of the target. The gender of those controlling the firm, that is the equity partners, has no bearing, without more, on the supervisor attendance criterion. The Solicitors had two female and one male partner, but its position with respect to the immigration package bid would have been identical had there been two male partners, with Deborah Adler as the only female partner. It would still have faced scoring five points unless prospective arrangements were made to augment the supervision arrangements from October 2010. The position would have been identical if all the partners were male but Deborah Adler had been employed part time as the immigration supervisor. Such problem as there was related to the fact that the person undertaking the supervision of immigration work at the time of the bid was engaged on a part time basis, with those she supervised between them undertaking immigration outside her working hours.  
  19. The potential difficulty caused by that state of affairs impacted on the partnership and additionally upon Deborah Adler as the person who was the part time supervisor. The partnership, had it collectively considered the matter, might have thought of engaging a further part time supervisor to cover the shortfall and increase the volume of immigration work undertaken, or of rearranging the time spent on immigration by those being supervised by Deborah Adler. As supervisor, Deborah Adler might have considered increasing her hours to assist the partnership generally, of which she was a member, despite her personal preference to maintain her part time status.  
  20. The general evidence upon which the Solicitors rely in support of the claim of indirect discrimination is summarised in paragraphs [21] and [22] above. In short, women are more likely to work part time than men, both in the general economy and within the solicitors’ profession. Within the solicitors’ profession women part timers on average work more hours than men and are, on average, younger. Women part timers were least likely to be sole practitioners and most likely to work for partnerships of between two and four. Men who work part time are also likely to be found in firms (although on the very small statistical sample, not as partners). The statistical material does not indicate whether the women were themselves partners. The information relating to solicitors came from a survey of 1,120 practitioners drawn from all branches of the profession in private, public and corporate practice. A total of 21% of the respondents indicated that they worked part time, giving a pool of 235 out of the 1,120 canvassed. 17% (190) were women and 4% (45) men. The numbers involved are small and were drawn from the three types of practice identified. To this general evidence is added the account of Deborah Adler, that in her particular circumstances in the context of the operation of the Solicitors, making good the supervision deficit would have produced serious problems.  
  21. The first question for the purposes of section 1(2)(a) is whether the supervisor attendance criterion puts or would put women at a particular disadvantage when compared with men, in short whether the evidence in this case shows a disparate adverse impact upon women. In considering this question, the nature of the criterion bears repetition. It does not require or award maximum points only when an identifiable supervisor is in full time employment. Such a provision would plainly give rise to indirect discrimination. It awards maximum points when on site supervision is provided for the whole of the time that the relevant work is being undertaken by the caseworkers. That supervision may be provided by more than one person. Miss Mountfield submits that women working part time within a bidding entity are disadvantaged because it is more difficult for the entity to gain full points than those which employ a full time supervisor or full time supervisors. On analysis, that would only be correct if a combination of part time supervisors failed to provide full time cover or if those supervised worked longer hours than a single supervisor. If the criterion had been evaluated by reference of the state of affairs that existed at the time of the bid there would have been some difficulty for those who found themselves factually in a position analogous to that of the solicitors. However, the bidding entity, to score full points, was given the best part of a year from the date on which the criterion was published to make arrangements to engage or train up such additional part time help as was required to make good the deficit, or otherwise adjust working patterns. That was true for a number of the other criteria, in respect of which the LSC was concerned with the arrangements that would be in place when the contract commenced in October 2010, in particular in respect of the criterion regarding the ratio between caseworkers and supervisors (each counted as full time equivalents) of which no complaint is made. Kerry Wood’s evidence of the steps put in place by bidders in the community care package suggests that there was no particular disadvantage to women. 101 bidding entities which did not employ a full time supervisor at the date of the bid put in place arrangements for October 2010 that secured full points, rather more than twice the number that failed to do so. There is no equivalent material available relating to the immigration package, yet the information available is that only one other bidder is raising this issue in a legal challenge. Mr Chamberlain submits that on the information available, far from making life more difficult for part time workers, the likelihood is that the criterion has resulted in the availability of additional part time work in areas of law where it was applied to the tender process. That work is likely to be undertaken disproportionately by women. He points out that there is no evidence to suggest the contrary. It seems to me to be a distinct possibility that the criterion has encouraged additional part time work.  
  22. In my judgment the Solicitors are seeking to draw more from the statistical evidence than it can bear. It does not show that the supervisor attendance criterion had a disparate adverse impact on women generally, or those in a senior supervisory position more particularly. Rather, the Solicitors seek to extrapolate from the individual facts of Deborah Adler’s working practices to the general proposition of adverse impact. Those facts include an 80% contract in respect of a 35 hour week, spread over five days, but a working pattern which delivers additional hours beyond the contractual arrangement. A 35 hour week is atypically short for solicitors in private practice, according to the same Law Society fact sheet as provides the information about part time working. The practical problem faced by the Solicitors stems, if at all, from the fact that as a result of working beyond her contractual hours there remain only four or five hours a week when Deborah Adler is not in the office during the firm’s normal 35 working hours. That does not, however, provide significant support for the proposition that the criterion puts women at a general disadvantage, a proposition that the Solicitors in my judgment have failed to establish. I am therefore unable to accept that the first step in establishing indirect discrimination has been made out.  
  23. The next question is whether the supervisor attendance criterion put Deborah Adler at a disadvantage. I shall consider this question, should I be wrong in my conclusion in respect of the first, and do so by reference to Deborah Adler’s personal position and that of the Solicitors. There is a difficulty with the evidence produced by the Solicitors. No consideration was given to the possibility of doing anything to increase the score against the supervisor attendance criterion. All the evidence is by way of ex post facto justification. The strangest aspect of the evidence is that, on her own account of the working practices in the firm, there would have been little difficulty in making arrangements which would have enabled the Solicitors to score eight points without having to engage a further supervisor. Deborah Alder’s practice is to be in the office for 31 or 32 hours a week. She is there when clients are seen. The trainee solicitor is running off her old immigration workload, but takes on only one new case a week. She spends the rest of her time doing work in areas not under the supervision of Deborah Adler. No reason is advanced why that trainee could not do her immigration work whilst Deborah Adler was in the office. Similarly, the caseworker, although described as a full time immigration practitioner, is also described as undertaking welfare and NASS work. Both fall outside the LSC immigration package. No explanation is given why the simple expedient of coinciding the hours spent by her two subordinates on immigration work with the hours that Deborah Adler was in the office was not pursued. Furthermore, although it is said that full time cover ‘would not work for us either in business terms or in terms of client care’ that assertion is not explained. I infer that the reference to ‘client care’ is an echo of Deborah Adler’s view that additional supervision, in the circumstances of her ability to be there most of time, would add little (or nothing) of real benefit to the Solicitors’ clients. The business terms are not explained beyond an indication that immigration work is not very profitable. One would have expected the consideration of the business issues to look carefully at the costs of improving the chances of securing a contract and, it must not be overlooked, the chances of being awarded all or most of the new matter starts bid for on securing a contract. The benefit to the Solicitors of securing a contract and enhancing the prospects in respect of new matter starts would also be considered. None of that happened and the evidence in these proceedings does not show that any such careful evaluation has since occurred. It may well be that engaging a part time supervisor seven hours a week, or fewer if Deborah Adler was content consistently to work beyond her contractual hours, would be difficult. The problem is that no effort was made to find out. The Solicitors also do not appear to have appreciated that if an additional person were employed, even part time, they could make a bid for a larger number of new matter starts. Had any thought been given at the time of the tender process to the possibilities roundly dismissed in the evidence lodged on behalf of the Solicitors, and the thought processes and factors been explained, it might have been possible to demonstrate disadvantage to Miss Adler or the firm. However, on the material produced by the Solicitors in this case, I am unpersuaded that the criterion put Deborah Adler or the Solicitors at any material disadvantage.  
  24. The final question concerns justification. If I am wrong on both of the first two questions, has the LSC shown that the supervisor attendance criterion was a proportionate means of achieving a legitimate aim? There was no disagreement between the parties as to the correct approach to the question of justification. The authorities (viz R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 at [165]; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at [19] and Allonby v Accrington & Rossendale College [2000] ICR 1189 at [29] suggest a structured inquiry: 

    (i) Is the objective of sufficient importance to justify a differential impact?

    (ii) Is the measure rationally connected to the objective?

    (iii) Are the means chosen no more than is necessary to accomplish the identified objective?

    (iv) How serious is the disparate adverse impact on the disadvantaged group?

    (v) Is the need of the LSC to maintain the criterion sufficiently strong to outweigh the detrimental impact to the disadvantaged group?

  25. The Solicitors do not dispute that in devising the supervisor attendance criterion the LSC was pursuing a legitimate aim. That aim, submits Miss Mountfield, was to formulate a basket of criteria which sought to identify those best able to deliver the legal service in question. In terms, the Solicitors have accepted that ‘ensuring high quality supervision, in terms of availability (ratios and accessibility) is a means of achieving that aim.’ (Claimants’ skeleton argument at [80]). The Solicitors case is that the supervisor attendance criterion, to the extent that 100% attendance attracts maximum points, is not a suitable means of achieving the desired ends and is disproportionate when balancing its usefulness against the disadvantage it imposes on those affected by it. Miss Mountfield advances five reasons in support of that submission. First, that it ‘belies common sense’ that 80% to 90% presence is any less effective than 100%. Secondly, that independent peer review in the past had found the Solicitors’ supervision arrangements to be good. Thirdly, that peer review provides an alternative way of ensuring quality of supervision and could have been used. Fourthly, a more subtle way of devising a score for the quality of supervision could have been devised. For example, a lower ratio of supervisor to caseworker could have been traded off against attendance. Alternatively, periods of time when the supervisor was absent might be treated differently if they were, as here, an accumulation of short periods rather than one long one. Further, the skill of the supervisor might be weighted in some way. Fifthly, the detriment was substantial (in this case it made the difference between securing a contract or not) and the changes necessary to achieve full points (recruitment or adjusting working patterns) were difficult or impractical.  
  26. There is, in my judgment, an immediate objection to using peer reviews carried out in the past on existing service providers as a tool for determining the allocation of new contracts. It would disadvantage new entrants into the field and give advantage to those who had existing contracts from the LSC.  
  27. I am unable to accept that the immediate presence of a supervisor for 80% or 90% of the time is as effective as full time presence. Such a conclusion does not belie common sense. On the contrary, in my judgment closer supervision and the ability to deal with a problem as it arises are both better achieved by the full time presence of a supervisor. There are many activities of supervisors which can be structured around part time presence, such as checking documents and the like. Such structuring is likely to happen, even with a full time supervisor, to enable the supervisor to mange her own substantial case load. But an essential feature of effective supervision is ready availability to deal with the problems and queries of those being supervised as they arise. The opportunity for access via telephone and email is not, in my view, as effective and is distinctly second best. Kerry Wood’s evidence on this matter (see paragraph [9] above) is convincing. The LSC view that supervision is an important factor in providing publicly funded legal services is not disputed. Indeed, at the meeting of the Immigration Representative Bodies Group with the LSC on 17 November 2009, the selection criteria were discussed and the sense of the meeting on this point recorded in the minutes:  

    “Representative Bodies felt having an on site supervisor for 100% of the time was an important measure to ensure quality”

  28. The importance of on site supervision is also reflected in the evidence of Deborah Adler herself who explains that, although not a formal policy, the practice is not to give client appointments after 15.00 for the very purpose of her being there when they are seen.  
  29. In considering whether the application of the criterion was proportionate, the underlying assumption to be applied is that it does generate indirect discrimination and that making changes to the working of the practice would have been difficult. That said, my conclusion is that the criterion was a proportionate means of achieving a legitimate aim. The scoring system drew a distinction between full time supervision and part time. Such a distinction was fully justified as one factor amongst a number which between them provided the opportunity to score a maximum of 38 points. The LSC was fully justified in deciding to award maximum points under this criterion to those bidding entities with full time supervision arrangements. Even if a group was disadvantaged, as Miss Mountfield submits, that disadvantage was outweighed by the need to encourage full time supervision cover. The adjustments to the criteria mooted by the Solicitors do not engage with the underlying point of the criterion, namely the importance of the presence of a supervisor in ensuring high quality services.  

    Ground 2: Section 76A of the 1975 Act

  30. Section 76A of the 1975 Act requires public authorities to have due regard to equality issues when formulating policy and before taking various decisions. There are analogous duties with regard to race and disability. Section 76A provides, as material:  

    “(1) A public authority shall in carrying out its functions have due regard to the need –

    (a) to eliminate unlawful discrimination, harassment and victimisation,

    and

    (b) to promote equality of opportunity between men and women.”

  31. There was no disagreement between the parties about the legal principles that section 76A (and its analogues) import, nor that it applied to the LSC in the context of its formulating the criteria against which bids for publicly funded contracts would be awarded. The parties referred to a number of decisions of this Court and of the Court of Appeal in which the nature of the duty was discussed, including R (Bapio Action) v Secretary of State for the Home Department [2007] EWCA Civ 1139; R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 [2005] EWHC 1435 (Admin); R (Baker) v Secretary of State for the Environment [2008] EWCA Civ 141; R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 Admin; R(EHRC) v Secretary of State for Justice [2010] EWHC 147 (Admin). From these authorities the following propositions emerge: 

    (i) The duty imposed by section 76A is mandatory and is an important duty;

    (ii) The duty must be performed substantively and rigorously, with an open mind. It is not good enough to adopt a ‘tick-box’ approach;

    (iii) A court considering a challenge founded on the proposition that due regard was not had to the matters specified in section 76A(1), is concerned with whether the substance of the duty was performed. An explicit reference to the duty is not necessary in the material preceding a decision. Similarly, a reference to the duty in the documentation generated prior to performing a function, is not sufficient to show that there was due regard.

    (iv) It is good practice for a decision maker to make reference to the duty and any material guidance or statutory codes, as well as to record the substance of its thinking.

    (v) Consideration of the equality duty must occur before the relevant function is carried out.

    (vi) The duty is a continuing one.

    (vii) There is a difference between the duties to have due regard to the need to eliminate unlawful discrimination etc. and the duty to have due regard to promote equality of opportunity. The latter is a broader duty which is not fulfilled simply by ensuring that in performing its function, the public authority commits no unlawful discrimination.

  32. Miss Mountfield submits that there is no evidence of any consideration being given by the LSC to the need to eliminate unlawful discrimination or to promote equality of opportunity in connection with the supervisor attendance criterion. It was overlooked. The LSC undertook an Equality Impact Assessment in relation to the draft criteria that were set out in the consultation paper, including the criterion relating to the ratio between caseworkers and supervisors. But it did not assess the impact of the supervisor attendance criterion before it was introduced into the tender process. At the least, submits Miss Mountfield, the criterion creates a disadvantage to a bidding entity which could not satisfy it without making changes to existing practices. That, without more, required the LSC to think about (and have due regard to) the equality duty.  
  33. It is unnecessary to set out the detail of the Equality Impact Assessment. It considered the matters identified in the consultation document and appropriately assessed each by reference to the equality duties found across the range of anti-discrimination legislation. No complaint is made about the thoroughness of the process. Mr Chamberlain accepts that the supervisor attendance criterion was not subjected to an equality assessment for the straightforward reason that it did not occur to the LSC that it might be discriminatory or likely to have any impact on equality of opportunity. He submits that the question of compliance with section 76A of the 1975 Act must be considered in the context of a conclusion that the supervisor attendance criterion is not unlawfully discriminatory. He relies upon these observations of Elias J in R (Elias) v Secretary of State for Defence EWHC 1435 (Admin):  

    “No doubt in some cases it will be plain even after a cursory consideration that section 71 is not engaged, or at least is not relevant. There is no need to enter into time consuming and potentially expensive consultation exercises or monitoring when discrimination issues are plainly not in point.”

  34. The judge had already held that the scheme under consideration in that case, namely ex gratia payments to civilians interned by the Japanese during the Second World War, had an ‘obviously discriminatory effect’. Mr Chamberlain contrasts that with this case where the effect of the supervisor attendance criterion was not obviously discriminatory and, as he submits, not discriminatory at all. He suggests that discrimination issues were plainly not in point and thus the equality duty was an irrelevance. There could be no breach of the equality duty if no discrimination issues arise.  
  35. The observation of Elias J presupposed that there had been a cursory consideration of an equality duty leading to a positive conclusion of its irrelevance. Mr Chamberlain urges the next logical step, namely that when a decision is far removed from an arena in which an equality duty could arise, even that cursory consideration is unnecessary. I am prepared to accept that there may be cases where a public authority might successfully argue that ‘due regard’ is the same as ‘no regard’ given the factual circumstances. Indeed, that was confirmed recently in the Court of Appeal in Brent London Borough Council v Corcoran [2010] EWCA Civ 774 between paragraphs [14] and [24]. Furthermore, a claimant would be very unlikely to secure any relief if the Court concluded that the alleged failure could have made no difference to the outcome. 
  36. In her evidence, Kerry Wood provides three comments on the Solicitors’ claim that the LSC breached the equality duty. First, that it was not possible to include the criterion in the Equality Impact Assessment, which was completed in June 2009 long before the supervisor attendance criterion emerged. Secondly, she suggests that it would not have been possible to attempt an evaluation of its impact without knowing who the bidders would be, how their bids would be structured and how this criterion would have impacted on overall scores. Thirdly, she doubts whether any analysis would have been meaningful, most particularly because all bidders were being given time to put in place such arrangements as they considered necessary to maximise their chances of winning a contract.  
  37. In my judgment these arguments would have had considerable force in support of an argument that the LSC had due regard to the equality duty had it paused before incorporating the criterion into the tender, worked through the three points mentioned (no doubt with the authors of the Equality Impact Assessment) but nevertheless concluded that the criterion should be included. None of that happened. There is force in Miss Mountfield’s criticism of this evidence that it is all ex post facto justification. In kind it is similar to the evidence of Deborah Adler to the effect that had she and her partners considered the impact of the criterion, it would not have been feasible to do anything to improve their position, an argument I have rejected in the context of indirect discrimination. I do not accept that a cursory examination of this criterion by the LSC would have led to the immediate and unequivocal conclusion that the equality duty was an irrelevance, still less that ‘no regard’ amounted to ‘due regard’ in this case.  
  38. At the least, this criterion was capable of having an impact on service providers whose supervision arrangements were such that, for a variety of reasons, they did not have existing full time cover. One of those reasons could be that a person exercising supervisory functions was working part time. A potential impact on the activities of part time workers, even tangential, is something that called for some consideration. It is not suggested by the Solicitors that there was a duty to re-consult after the supervisor attendance criterion was developed. Whether consideration of this issue would have resulted in an appreciation of the particular difficulty of a small firm with a part time supervisor working not far short of full time, is a moot point. Yet that fact does not diminish the need to have considered it to satisfy the equality duty under section 76A of the 1975 Act. The LSC failed to do so. I shall touch on the question of potential remedies for this breach when considering the issue of time.  

    Time

  39. Mr Chamberlain submits that irrespective of my conclusions on the two issues of substance raised in this application, permission to apply for judicial review should be refused, alternatively any relief should be denied, because the claim was not brought promptly or within three months of when the complaint arose. That, he submits, was when the criteria were published on 30 November 2009. The Solicitors themselves suggest in the Amended Grounds that the criterion was ‘plainly indirectly discriminatory’. If that is so now, it was so then and the position is no different for the argument based on the section 76A equality duty. He submits that there is no good reason to extend time. In support of his submission he relies upon two authorities arising from challenges to procurement processes under the 2006 Regulations. They are Jobsin Co UK Plc v Department of Health [2002] EWCA Civ 1241, [2002] 1 CMLR 44 and M Holleran Ltd v Severn Trent Water Ltd [2004] EWHC 2508 (Comm). The Solicitors do not dispute that they could have started these proceedings following the launch of the tender process in November 2009. Their reasons for not doing so, more fully set out in paragraph [17] above, were that they expected nonetheless to secure a contract. Miss Mountfield submits that it is not realistic to expect a small firm of solicitors to take on the LSC until certain that the illegality they have identified in fact caused them loss. Additionally, she contends that because the letting of these contracts involves EU rights relating to discrimination, and also is in the environment of the provision of legal services to the vulnerable, time should be extended. She suggested that a strict view of time would deprive the Solicitors of a remedy as required by Article 18 of Directive 2006/54 which relates to equal treatment and equal opportunities. Further that time should be extended for essentially the same reasons as led this Court to extend time in the Law Society case. Mr Chamberlain counters that the appeal to Article 18 overlooks the fact that the Solicitors have always had their remedy. They have jeopardised their ability to press their arguments because of tardiness in bringing proceedings. The Luxembourg Court has consistently upheld the right of national legal systems to impose time limits on claims, a fact recognised within the Directive itself at Article 17(3). On analysis, he submits that the Law Society case is against the Solicitors and provides no support for extending time in this case. 
  40. I accept Mr Chamberlain’s submission on the impact of the Directive on the time point. Articles 17 requires remedies to be made available to those who consider themselves wronged, and Article 18 is concerned with compensation and reparation. But Articles 17(3) provides:  

    “3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equal treatment.”

  41. In Allan Rutherford LLP v The Legal Services Commission [2010] EWHC 3068 Admin, a case which was argued before me in the same week as this application, a time point was taken by the LSC. The argument was similar to that advanced by Mr Chamberlain, because the challenge was to criteria which formed part of the tender evaluation process, and which it was suggested should have been challenged in the period after the tender documents were published. The criterion related to experience before Tribunals. It was clear to the solicitors concerned from the moment the tender documents were published that they would score no points on that account. No mention was made of Holleran in the course of argument in that case. In addition to concluding in the course of my judgment in Allan Rutherford LLP that there was no substance in the underlying complaints, I refused permission on time grounds by reference to the Jobsin and Law Society cases. Paragraphs [40] to [57] of that judgment contain the reasoning: 

    “40. CPR 54.5 requires a claimant for permission to apply for judicial review to bring his claim promptly and in any event ‘not later than 3 months after the grounds to make the claim first arose’. There can in my judgment be no doubt that, in so far as the claimant suggests that the criterion under attack in these proceedings is irrational, or that the feature of the tender process which allowed a single bidder to secure all the new matters starts at one access point for a particular package was unlawful, time began to run on 26 February 2010. Time will only be extended if there is a good reason to do so and, in any event, permission to apply for judicial review will be refused (alternatively relief will be refused as a matter of discretion) if otherwise hardship or prejudice would follow to third parties or there would be detriment to good administration. That is the language of section 31(6) of the Senior Courts Act 1981 which provides:

    “Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant (a) leave for the making of an application or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

    41. In R. v Dairy Produce Quota Tribunal for England and Wales ex parte Caswell [1990] 2 AC 738 the House of Lords decided that if an application were not made promptly or within three months undue delay for the purposes of section 31(6) was established. There always needs to be a good reason to extend time. But even if such a reason were demonstrated, permission could be refused, or relief denied, if the requisite hardship, prejudice or detriment would otherwise follow.

    42. In the arena of public procurement, Regulation 32(2) of the 2006 Regulations provides a right of action for any service provider who suffers or risks suffering loss or damage as a result of a breach of the Regulations by the contracting authority. Regulation 32(4)(b) provides that the proceedings must be:

    “… brought promptly and in any event within 3 months from the date when the grounds for the bringing of the proceedings first arose unless the Court considers that there is a good reason for extending the period within which the proceedings may be brought.”

    The parallel with public law proceedings brought under what is now CPR 54 is clear.

    43. In Jobsin Co UK Plc v Department of Health [2002] 1 CMLR 44 the Court of Appeal considered a number of questions relating to the time limit under the Regulations. The claim had been brought under the Regulations (not via judicial review). The claim was not brought promptly or within three months, but the judge had extended time. The complaint made by the claimant about the procurement process was a fundamental one. The Department had not published the criteria against which the bids would be evaluated. In paragraph [22] of his judgment Dyson LJ, with whom Thorpe LJ and Astill J agreed, identified the two questions which fell to be considered: (a) when did the right of action arise; and (b) if the proceedings were not brought promptly and within three months, was there a good reason to extend time? There was no doubt that time began to run when the briefing document in question was issued that failed to identify the relevant criteria. From that moment, the bidder was at risk of suffering loss. The cause of action was complete for the purposes of the Regulations. Dyson LJ rejected the submission that time did not begin to run until the procurement process had been completed and that no complaint could be brought until then. The Regulation is concerned not only with loss but risk of loss. Additionally:

    “It would be strange if a complaint could not be brought until the process has been completed. It may be too late to challenge the process by then. A contract may have been concluded with the successful bidder. Even if that has not occurred, the longer the delay, the greater the cost of re-running the process and the greater the overall cost. There is every good reason why Parliament should have intended that challenges to the lawfulness of the process should be made as soon as possible. They can be made as soon as there has occurred a breach which may cause one of the bidders to suffer loss. There was no good reason for postponing the earliest date when proceedings can begin beyond that date. Mr. Lewis suggests that there is such a reason. He points out that if, in a case such as this, the limitation period runs from the date of publication of the tender documents, it will be possible for the contracting authority to rule out any real possibility of a challenge by issuing an invitation in breach of the regulations and then not taking any further steps in relation to tenders until after the three months period has expired. I confess that I find this an unlikely state of affairs, but I can see that it might conceivably happen. If it did, a service provider who wished to bring proceedings might have a good case for an extension of time: it would all depend on the facts. In my view, this cannot affect the plain meaning of regulation 32(2). I would therefore hold that the right of action which Jobsin asserts in the present case first arose on or about 14th August 2000. The essential complaint which lies at the heart of the proceedings is that there was a breach of regulation 21(3), in that the Briefing Document did not identify the criteria by which the DOH would assess the most economically advantageous bid.” (paragraph [28])

    44. …

    45. The Department for Health submitted that the Judge had been wrong to extend time. He had relied upon Jobsin’s ignorance of the law (not a feature of the case I am considering), concluded that no hardship or prejudice would flow to third parties and was unconvinced that there was any detriment to good administration. Jobsin advanced a number of reasons to support the extension:

    (i) The extension of time sought was relatively short;

    (ii) Their excuse for being late was that they were unaware of the legal position until they consulted solicitors;

    (iii) There was no evidence of detriment to the Department of Health or to good administration over and above normal inconvenience;

    (iv) There was no evidence of damage to third parties, in particular because the contract had not yet been let;

    (v) There was a wider public interest in securing the validity of the procurement process because it affected the putative rights of all potential bidders throughout the EU. It would be strange if a process which the Court considered had been conducted contrary to EU law should be allowed to stand when only a short period of delay in challenging it was involved.

    The Judge had additionally concluded that it was reasonable for Jobsin to wait to see whether they succeeded in their bid on the basis that its relationship with the Department might be imperilled if it were to launch an early challenge.

    46. Dyson LJ considered that ignorance of the true legal position would not usually provide a good reason for failing to act and in so doing made a number of observations which apply with equal force to challenges to public law decisions brought under CPR 54:

    “Regulation 32(4) specifies a short limitation period. That is no doubt for the good policy reason that it is in the public interest that challenges to the tender process of a public service contract should be made promptly so as to cause as little disruption and delay as possible. It is not merely because the interests of all those who have participated in the tender process have to be taken into account. It is also because there is a wider public interest in ensuring that tenders which public authorities have invited for a public project should be processed as quickly as possible. A balance has to be struck between two competing interests: the need to allow challenges to be made to an unlawful tender process, and the need to ensure that any such challenges are made expeditiously. Regulation 32(4)(b) is the result of that balancing exercise.” (Paragraph [33])

    Dyson LJ went on to describe as a ‘startling proposition’ that even where a bidder knows of the defect he could stay his hand for fear of jeopardising his eventual chance of securing the contract. He said:

    “It seems to me that a tenderer who finds himself in such a situation faces a stark choice. He must either make his challenge or accept the validity of the process and take his chance on being successful, knowing that the other tenderers are in the same boat. In my view, it is unreasonable that he should sit on his rights and wait to see the results of the bidding process on the basis that, if he is successful he will remain quiet, but otherwise he will start proceedings. I do not believe that a tenderer who deliberately delays proceedings in an attempt to have his cake and eat it has good reason for an extension of time if the outcome of the process is not to his liking.” (paragraph [38])

    47. In dealing with the other arguments advanced on behalf of Jobsin Dyson LJ said:

    “It is not necessary to adduce particular evidence of prejudice to third parties. It is inherent in the process itself that delay may well cause prejudice to third parties as well as detriment to good administration.” (paragraph [40])

    He added:

    “Finally, I should deal with Mr Lewis’s point that there should be an extension of time because the court has ruled in Jobsin’s favour on the issue of classification, and because the court should not stifle proceedings where what is at stake is whether the process is in breach of EC law. This argument, carried to its logical conclusion, involves a proposition that the limitation provisions in regulation 32(4) are contrary to EC law. That argument was rejected by this Court in Mantra Communications SA v Home Office.” (paragraph [41])

    48. The facts in Jobsin provide two striking contrasts with those in the instant application. First, the contract had not been let and secondly the Court was persuaded that there had been a breach of European procurement law. Nonetheless, time was not extended.

    49. The LSC has adduced evidence of prejudice and detriment to good administration in this case which would flow from extending time. At the least, were the Solicitors to be successful in their claim, the competition for this package would have to be run again in Norwich against revised criteria. The consortium which succeeded in its bid would very obviously be prejudiced not only because it would be threatened by a successful bid from the Solicitors but because others might also successfully bid. The LSC would be put to trouble and expense in running a fresh competition and the new arrangements would inevitably be significantly delayed.

    50. The reason for the delay in challenging the criterion and the arrangements for the distribution of new matter starts is that the Solicitors believed that, despite their inability to score under the material criterion, they would nonetheless be successful. This is a classic case of a bidder deciding to ‘wait and see’ whether the perceived defects in the tender process would matter. This reason does not, in my judgment, provide a proper basis on which to extend time but, in any event, the potential prejudice to the successful bidder and detriment to good administration decisively tell against grant of leave even if there were merit in the underlying legal arguments.

    51. Mr Sinclair seeks to avoid this conclusion by an appeal to the reasoning in the Law Society case in which this Court was prepared to extend time and grant relief despite the challenge being to a single criterion applied to the family package which had, similarly, been published on 26 February 2010. The Law Society decided to challenge the process in August 2010 after the outcome of the tendering process across the country was known.

    52. The Divisional Court inclined to the view that it would not have been possible for the criterion, or the tight time frame it imposed (see paragraph [22] above), to be challenged at the time of its publication. That was because its profound impact on the whole process in the family package was unforeseen by both the Law Society and the LSC at the time as well as by bidding solicitors. There would have been an argument of prematurity and, in any event, the LSC had itself given indications that concerns about the panel membership criterion should await the outcome of the bidding process. Moses LJ said this:

    “116. The need for promptness in judicial review is well-known. Good public administration requires finality. This is because public authorities need to have certainty as to the legal validity of their decisions and actions, and third parties need to be able to rely on those decisions and actions. Promptness has been recognised to be particularly important where the interest of other parties is concerned: see for example R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763 at 782-783; R v Independent Television Commission ex parte TVNI Limited [1996] JR 60; and the authorities cited in Fordham’s Judicial Review Handbook, Fifth Edition, 26.2.2.”

    53. At paragraph 123 and 124 of his judgment, Moses LJ discussed and distinguished Jobsin.

    “123. It is because of the unexpected outcome that the LSC is now conducting the review to which we have referred. The fact that this challenge is to the impact of the timing of the introduction of the panel membership criteria, rather than to the criteria itself, distinguishes this case from Jobsin Co UK Plc (t/a Internet Recruitment Solutions) v Department of Health [2001] EWCA Civ 1241 on which Mr Lewis QC relied. That case involved a situation in which the defendant erroneously considered that a procurement exercise was for a type of contract which did not require the tendering documents to contain the criteria on which it intended to base its decision. In fact, the contract fell into a different category and it was necessary for the documents to contain the criteria. The question was whether a claim by a tenderer who had not been short-listed was brought within three months from the date when grounds for bringing the proceedings first arose. It was held that those grounds arose when the invitation to tender was public because tenderers were at risk of suffering loss or damage from that date as a result of the defendant’s breach of duty.

    124. In Jobsin’s case the relevant facts were known to both the bidder and the defendant at the time of the tender, but the bidder did not appreciate the legal significance of those facts. In the present case neither the bidders, the Law Society, or indeed the LSC were aware of the impact of the introduction of the criteria on 26 February 2010 when the invitation to tender was published. Jobsin’s case also differs from this case because it was a challenge by a disappointed bidder in private law proceedings under the relevant regulations. Taking the facts before us, it has similarities to a challenge by an individual firm employing experienced practitioners who are not panel members and who could not qualify in time. Such a firm would know at the date of the tender that it would obtain fewer points than it would have done had those qualified to become panel members done so. But a challenge of that sort is very different from the Law Society’s challenge to the impact of the timing of the introduction of the criterion on the overall outcome of the process. This is a public interest challenge concerned with the impact of this aspect of the procurement exercise on access to justice for those needing advice and representation in family law matters.”

    54. The contrasts with Jobsin drawn by Moses LJ which provided the foundation for extending time are not apparent in this case. The ‘timing’ point referred to does not avail the Solicitors. The relevant facts were known to the Solicitors in February. When they made their bid it was clear that they would score no points under the Tribunal criterion and also that the scheme enabled a bidder to seek and secure all of the available new matter starts. That others might score such points must have been obvious. So too should have been the risk of failure. The solicitors are disappointed bidders seeking to challenge the process out of time rather than a body bringing a public interest challenge. Mr Sinclair submits that the challenge is one brought in the public interest because the aim of the Solicitors is not limited to their own financial interests but also to widen access to welfare law advice in Norwich. With respect to both Mr Sinclair and the Solicitors I am rather sceptical at that suggestion. This claim is being advanced to support the private interests of the Solicitors to secure professional work for the practice. Any perceived benefit more widely to the people of Norwich would be incidental. The situation has no parallel with the circumstances in which the Law Society made its challenge.

    55. Moses LJ considered whether time should be extended, assuming but without deciding, that the time for challenge arose in February. He recognised ‘that the general approach to extending time is strict, particularly in cases where third party interests are affected (paragraph [125]) but the Court went on to extend time for the following reasons (paragraphs [126] to [129]):

    • The general importance of the issue, which was exceptional. The errors identified affected not only solicitors generally but also the wider public because the most vulnerable had ‘been unlawfully prevented from the opportunity to obtain the services of a much wider pool of well qualified and experienced family lawyers.’
    • The claim was strong (indeed having extended time it was successful).
    • Even if time started to run from February, the uncertainly about its general impact upon the bidding process was a factor in favour of extending time.

    56. The Court was prepared to extend time despite the detriment to good administration in having to re-run the whole of the family package across England and Wales and despite the prejudice that would be suffered by those who had been successful in the flawed bidding process.

    57. In my judgment, not only are the factors which distinguished Jobsin not available to the Solicitors in this case, but the reasons which led the Court in the Law Society case to extend time do not apply either. Questions relating to extending time in public law proceedings are necessarily fact specific. But in the face of Jobsin and the consideration given to in the Law Society case it would take a strong combination of circumstances to justify an extension of time to challenge matters which were apparent when the bidding process opened, whether in public law proceedings or under the 2006 Regulations. In the result time should not be extended in this case and permission will be refused on that ground also.”

  42. Holleran provides added support for the conclusions I reached in Allan Rutherford LLP. Holleran concerned a claim under the Utilities Contracts Regulations 1996 which was held to be time-barred by reference to a regulation in material terms the same as CPR 54.5(1) and Regulation 32(2) of the 2006 Regulations. At paragraph [41] Cooke J said:  

    “In the case of the Regulations, there is undoubtedly a public interest purpose in the requirement for promptness as is shown by the European Directives, pursuant to which the Regulations were made. It is self-evident and also appears from other decisions on comparable regulations that, in the procurement context, the need for speed in raising complaints and dealing with them is vital, since the whole process of procurement is otherwise rendered uncertain and hopelessly disrupted. The need for a rapid and effective review and enforcement is predicated on the need for prompt complaint. Without prompt complaint and review, lists of contractors may be drawn up and the tendering process progressed or even completed, with alteration of position by other contractors, as well as the utility company.”

    He summarised the principles on which time might be extended:

    “The question of an extension of time is tied up with the issue of promptness. The question is whether or not there is good reason for extending the period within which proceedings may be brought whether by reference to the requirement of promptness or the 3 month limit. The authorities show that it is not possible to define or circumscribe the scope of the words “good reason” and that it will always depend on all the circumstances of the particular case and is a matter for the Judge’s discretion. The type of factors which have to be borne in mind in an exercise of this kind is however well known, namely the length of and reasons for any delay; the extent to which the claimant is to blame for any delay; the extent to which the defendant may have induced or contributed to the delay; and whether the defendant has been or will be prejudiced by the delay or the grant of an extension.” [50]“

    On the question of prejudice he said:

    “As to prejudice to STW, the Court of Appeal decisions in Jobsin (ibid) at paragraph 40 and Matra v Home Office [1999] 3 AER 562 (per Buxton LJ at page 1663) make it plain that it is not necessary to adduce particular evidence of prejudice to third parties. As Dyson LJ says, it is inherent in the process itself that delay may well cause prejudice to third parties as well as detriment to good administration. One of the major purposes of proceedings is to enable procurement procedures to be corrected and for the Court to review and enforce any remedy required. Although Holleran’s claim is now limited to damages and the claim for any other relief has been abandoned, the effect of a damages claim on a complex contracts process and its unsettling disruption of it is prejudice enough.” [53]

     

  43. As in the Allan Rutherford case, the LSC has adduced evidence of prejudice and detriment to good administration, even though Jobsin suggests that it is unnecessary. The relief sought in these proceedings is set out in paragraph 40 of the Amended Detailed Statement of Facts and Grounds:  

    “(i) An order declaring that the inclusion of the supervisor attendance criterion was unlawful and discriminatory

    (ii) An order quashing the decision to refuse the Claimant’s tender

    (iii) Such further orders, in particular as to the tendering process as a whole and the extent to which the unlawful elements may be severed from the process as a whole, which the Court considers necessary in order to give effect to its judgment.”

  44. In argument Miss Mountfield advanced an alternative possibility, namely that because new matter starts were held back to satisfy successful appeals, there should be no difficulty ‘if one more supplier is let in’. The late reference to that possibility meant that there was no material concerning it before the Court. Mr. Chamberlain sought instructions in the course of Miss Mountfield’s reply. On instructions he confirmed that a number of new matter starts had been kept back as a national contingency to accommodate successful appeals within the tender process. Whilst there was no information about how many remained unallocated, he was told that there were some left. But there is, as it seems to me, a difficulty in Miss Mountfield’s alternative possibility. It would amount to applying different criteria to the Solicitors’ bid, as compared with everybody else’s bid, in circumstances where the whole point of the procurement process was to ensure that all bids were judged objectively against the same criteria. Removing the criterion altogether from consideration would be a crude and inappropriate response. The impact of doing that on the bidding process for the community care package is described in paragraph [23] above. The Solicitors, just as much as the LSC, recognise that a criterion which differentiates between bids by reference to supervision is justified. The complaint is about the way in which the criterion was crafted. If it had been revised in some way to make it easier for service providers in factual circumstances similar to those described by Deborah Adler to score additional points, one simply does not know whether the Solicitors would have succeeded because of the likelihood that other organisations would also have increased their scores. The suggestion that the Solicitors should be awarded new matter starts by way of relief is disconnected, as it seems to me, from the section 76A failure to have due regard to equality. If the LSC had done as the Solicitors suggest they should have done by having due regard to section 76A, one of two things would have happened. First, the LSC might have made changes to the criteria. Secondly, it might have decided that the supervisor attendance criterion should stay as it was. Even if the first course had been followed it says nothing about whether the Solicitors would have succeeded better in the bidding process and if the second had been followed, the position would be unchanged.  
  45. A declaration, without more, would not interfere with the tender process or its outcome. However, such a declaration is no more than a stepping stone to the balance of the relief sought. The object of these proceedings is to deliver a contract for immigration work to the Solicitors. The second and third elements of the pleaded relief seek to achieve that. They recognise that in order to achieve a contract aspects of the process will have to be revisited, including the possibility of running the tender again.  
  46. The evidence of prejudice and detriment adduced by the LSC is directed to the substantive relief sought by the Solicitors in the detailed grounds. The nature of the evidence is unsurprising. Any disruption to those already awarded a contract would prejudice them. Miss Mountfield responds by saying that successful bidders have been given contracts which explicitly state that they are subject to the outcome of outstanding legal challenges. But that does not undermine the straightforward proposition that re-evaluating the existing bids by excising the supervisor attendance criterion or running the tender exercise again would expose the existing successful bidders to prejudice. The contracts do no more than recognise that the successful bidders may be prejudiced by late challenges to the tender process and seek to immunise the LSC from breach of contract claims in that event. The evidence further explains the time, trouble and (inferentially) the expense that would be involved in visiting the process again. It prays in aid the delay that would result in the new arrangements for public funding finally to be in place.  
  47. Drawing together the threads of the arguments relating to time, my conclusions are these. The time at which the grounds for this challenge arose was 30 November 2009. The Solicitors were not entitled to wait and see whether the suggested illegality in the criteria resulted in their failure to secure a contract, or reduced new matter starts awarded to them even if successful. The evidence that there was a general sense amongst the profession that it was better to wait, exiguous as it is, does not alter that conclusion. The position articulated in Jobsin is clear. The fact that the challenge is made in the arena of European procurement law relying on alleged discrimination which has its roots in European law similarly does not alter the position. The challenge by reference to discrimination could have been brought after 30 November. The requirement to do so promptly and in any event within three months, whether by way of judicial review or by claim under the 2006 Regulations, provides an adequate remedy. An appeal to Article 18 of the 2005 Directive does not assist. Remedies may be subject to domestic time limits. In Jobsin time was not extended even though the Court accepted a breach of European procurement law. I do not doubt the sincerity of the view expressed by and on behalf of the Solicitors that the award of an immigration contract to them would be in the public interest because it would deliver a wider choice to those in need of such services in East London. However, given the very large numbers of service providers who were successful in London the argument is objectively weak. But, in any event, there is no avoiding the purpose of these proceedings. It is to secure work to the Solicitors. The circumstances are distant from those that led this Court to extend time in the Law Society case in its public interest challenge. There is, in my judgment, no good reason to extend time. Whilst I have rejected the Solicitors argument based upon indirect discrimination, I have accepted that in introducing the supervisor attendance criterion the LSC did not have due regard to its equality duty under section 76A of the 1975 Act. The strength of the claim is an important factor in deciding whether to extend time. Unless the award of contracts under the immigration package (quite apart from the others in which the same or a similar criterion was applied) were suspended whilst the LSC is required to reconsider the supervisor attendance criterion and then rerun the exercise if it concludes that it should be removed or refined having due regard to the equality duty, it is difficult to see any benefit that could accrue to the claimants. I am unable to accept, having regard to all the circumstances of this case, that it is appropriate to extend time. No good reason to do so has been advanced. I am also satisfied that an outcome that might result in the award of a contract to the Solicitors would involve prejudice to third parties and be a detriment to good administration. I decline to extend time and refuse permission to apply for judicial review. Although the order will be to refuse permission to apply for judicial review, this judgment was given after a rolled-up hearing which lasted two days. In the circumstances, this judgment will be placed on Bailii and may be cited in other proceedings.

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