Court Of Appeal Just Another Stop On The Road For QASA

Dispute Resolution analysis: Matthew Lohn, senior partner of Fieldfisher, considers the Court of Appeal's decision on the lawfulness of the controversial Quality Assurance Scheme for Advocates (QASA).

Original news

R (on the application of Lumsdon and others) v Legal Services Board[2014] EWCA Civ 1276, [2014] All ER (D) 71 (Oct).

The Bar Standards Board (BSB), and others, wished to introduce QASA in respect of criminal practitioners. The scheme was approved by the Legal Services Board (LSB). The claimants, who were criminal law barristers, unsuccessfully sought judicial review of the scheme. The Court of Appeal, Civil Division, dismissed the claimants' appeal and held that the scheme was not unlawful.

What is the background to the appeal?

The Court of Appeal has just handed down the second part of its ruling in a challenge funded by the Criminal Bar Association to the introduction of a scheme to assess the quality of court advocates. QASA has from the outset been controversial attracting vocal criticism from members of the bar and in addition some adverse judicial comment. The Divisional Court first considered the matter in late 2013 rejecting the challenge which was renewed before the court (after an initial rejection by the court following an application on the papers). Dinah Rose QC and Tom de La Mare QC appeared pro bono for the appellants.

How did the Court of Appeal approach the challenge to the lawfulness of the QASA scheme?

Before the Divisional Court, the appellants put forward five grounds of challenge to the decision that QASA is lawful. The court considered each ground separately, rejecting all five.

The appellants' first ground was that the Divisional Court erred in its approach to the independence of the advocate and the judiciary. In addressing this ground, the court considered that the LSB did not act unlawfully in concluding that there was no significant risk that QASA would undermine the independence of advocates. They also expressed that if it were necessary for them to decide whether QASA undermines the independence of the advocate, they would conclude that it does not. The appellants' argument that QASA would undermine judicial independence was also rejected.

The next ground of challenge was that QASA provided no scope for advocates to appeal against the content of evaluations or decisions made under the scheme. While the court rejected this contention, it did express the hope that the BSB would clarify its appeals...

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