The Law Society, R (on the application of) v Legal Services Commission

The Law Society, R (on the application of) v Legal Services Commission

The Unified Contract's unilateral amendment powers are so broad as to amount to a power to rewrite the contract, lacking sufficient precision and certainty as to the obligations of service providers. This fails to meet the requirements of transparency under both Regulation 4(3) and Regulation 9(7) of the 2006 Regulations, as economic operators cannot determine the subject matter of the contract or the performance requirements they may be subject to during the contract period. The reservation of such a power creates an unjustified obstacle to competition and deters potential service providers, infringing both the principle of transparency and equal treatment.

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 to Court of Appeal
Outcome
Appeal by the Law Society and Dexter Montague allowed; appeal by the Legal Services Commission and Secretary of State dismissed.
Legal Topics
Transparency in Public Contracts, Unilateral Amendment Clauses, Technical Specifications, EU Procurement Directives
Public Procurement Law Contract Law Administrative Law Transparency in Public Contracts Unilateral Amendment Clauses Technical Specifications EU Procurement Directives

Case Brief

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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 to Court of Appeal

Legal Issues

  1. 1 Whether the unilateral amendment powers in the Unified Contract breach the transparency requirements of the Public Contract Regulations 2006 and the Public Sector Directive
  2. 2 Whether the Unified Contract's amendment provisions comply with Regulation 4(3) and Regulation 9(7) of the 2006 Regulations

Ratio Decidendi

The Unified Contract's unilateral amendment powers are so broad as to amount to a power to rewrite the contract, lacking sufficient precision and certainty as to the obligations of service providers. This fails to meet the requirements of transparency under both Regulation 4(3) and Regulation 9(7) of the 2006 Regulations, as economic operators cannot determine the subject matter of the contract or the performance requirements they may be subject to during the contract period. The reservation of such a power creates an unjustified obstacle to competition and deters potential service providers, infringing both the principle of transparency and equal treatment.

Court Disposition

Appeal by the Law Society and Dexter Montague allowed; appeal by the Legal Services Commission and Secretary of State 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 and Regulation 4(3).