The Law Society, R (on the application of) v Legal Services Commission [2007] EWCA Civ 1264 (29 November 2007)

The Law Society, R (on the application of) v Legal Services Commission [2007] EWCA Civ 1264 (29 November 2007)

The Unified Contract's unilateral amendment powers reserved to the LSC are so broad and lacking in substantive limitation or objective criteria that they fail to satisfy the requirements of transparency and precision under Regulation 4(3) and Regulation 9(7) of the Public Contract Regulations 2006. The power to amend is effectively a power to rewrite the contract, creating uncertainty that deters providers and constitutes an unjustified obstacle to competition. Procedural safeguards and general public law limitations are insufficient to remedy this lack of substantive clarity.

Citation
[2007] EWCA Civ 1264
Parties
Claimant/appellant: The Law Society; Claimant/appellant: Dexter Montague & Partners; Defendant/respondent: Legal Services Commission; Interested Party: The Lord Chancellor and the Secretary of State for Justice
Jurisdiction
England and Wales
Judgment Date
29 November 2007
Procedural Posture
Judicial Review and Damages Claim / Appeal From High Court (queen's Bench Division, Administrative Court) to Court of Appeal
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
Transparency in Public Contracts, Unilateral Amendment Clauses, Technical Specifications, Equal Treatment, Legal Aid Contracts
Public Procurement Administrative Law Contract Law EU Law Transparency in Public Contracts Unilateral Amendment Clauses Technical Specifications Equal Treatment +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

The Law Society

Claimant/appellant

Dexter Montague & Partners

Claimant/appellant

Legal Services Commission

Defendant/respondent

The Lord Chancellor and the Secretary of State for Justice

Interested Party

Procedural Posture

Judicial Review and Damages Claim / Appeal From High Court (queen's Bench Division, Administrative Court) to Court of Appeal

Legal Issues

  1. 1 Whether the unilateral amendment powers in the Unified Contract breach the transparency requirements of the Public Sector Directive and the Public Contract Regulations 2006, specifically Regulations 4(3) and 9(7)
  2. 2 Whether the Unified Contract's amendment provisions constitute an unjustified obstacle to competition and fail to define the subject matter of the contract with sufficient precision

Ratio Decidendi

The Unified Contract's unilateral amendment powers reserved to the LSC are so broad and lacking in substantive limitation or objective criteria that they fail to satisfy the requirements of transparency and precision under Regulation 4(3) and Regulation 9(7) of the Public Contract Regulations 2006. The power to amend is effectively a power to rewrite the contract, creating uncertainty that deters providers and constitutes an unjustified obstacle to competition. Procedural safeguards and general public law limitations are insufficient to remedy this lack of substantive clarity.

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • Declaration that the LSC's rights to amend the Unified Contract (other than amendments permitted under clause 13.2) are incompatible with Regulations 9(2), 9(4), and 9(7) of the 2006 Regulations insofar as applicable to technical specifications.
  • Refusal to grant relief under Regulation 4(3) overturned; Unified Contract found incompatible with Regulation 4(3) as well.