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Appeal judges allow Hossack to challenge loss of contract

12 July 2011

Campaigning solicitor Yvonne Hossack has won the right to challenge the LSC’s decision not to award her firm a legal aid contract at a judicial review hearing.

Hossack, principal of Hossacks in Northamptonshire, specialises in community care law and campaigns against the closure of care homes.

The Court of Appeal heard that she submitted a tender early in 2010 for a contract in social welfare law, including community care, in each of the 125 areas in England in Wales.

The LSC rejected all her tenders apart from one made for Wiltshire, which was later terminated.

Hossack challenged the decision in the High Court, but Mr Justice Mitting rejected her claim earlier this year.

Delivering judgment in Hossack v The Legal Services Comission [2011] EWCA Civ 788, Lord Justice Richards said Hossack submitted an identical form for each area, referring to ‘Wiltshire’ in each case as the procurement area for which the bid was made.

Richards LJ said Hossack’s “broad contention is that the LSC had a discretion, which it should have exercised in her favour, to accept all her tenders despite the errors and deficiencies in them.

“She points to the LSC’s guidance concerning clarifications and to the large number of occasions on which requests for clarification are now known to have been made, and she contrasts this with the rejection of her tenders out of hand because of the heading ‘Wiltshire’.”

Richards LJ said it was “well arguable” that the use of the same heading was an “obvious mistake”, which could have been checked by a request for clarification.

“The fundamental difficulty facing Mrs Hossack in relation to the generality of her tenders, however, is the admitted fact that she was unable to meet the essential requirement as to presence in the area, save in the case of Northamptonshire.

“Her only office was in Northamptonshire and she had no intention of opening an office in any other area: that would be contrary to her basic modus operandi.

“Her inability to meet the presence requirement made it inevitable, in my view, that her tenders in respect of every area save Northamptonshire would be rejected (or that any contract mistakenly awarded would be terminated, as happened in the case of Wiltshire, once the true position was appreciated).”

Lord Justice Richards granted Hossack permission to apply for judicial review of the rejection of her tender at the Administrative Court in respect of Northamptonshire only. Lord Justices Ward and Tomlinson agreed.

Hossack told Solicitors Journal she was “absolutely delighted” by the ruling, but there were “mountains to climb”.

She said her firm had been “running on empty” since she lost her contract in November last year.

Hossack said that if her firm obtained a legal aid contract in Northampton she could offer legal help by phone to clients living all over the country.

She said she did not expect the Administrative Court to hear her judicial review until September at the earliest.

“If there’s a rich philanthropist out there who wants to help, all comers will be welcome,” she added.

Hossack lost a challenge in Strasbourg last year to the closure of care homes. She argued that closure reduces life expectancy of old people, infringing their rights to life under article 2 of the Convention (see, 8 June 2010).

The test case involved Louisa Watts, aged 106.

Shortly afterwards she lost a judicial review against the LSC at the High Court, challenging a request to hand over files for an audit (see, 22 June 2010).

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