The government's decision to implement cuts to the Litigators Graduated Fee Scheme (LGFS) has been successfully challenged by the Law Society in the High Court. In a strongly-worded judgement, the court quashed regulations implementing cuts to payments for document-heavy crown court cases, which are becoming increasingly common due to the prevalence of digital devices.

The changes to LGFS, brought in on 1 December 2017, have lead to a situation where solicitors have to perform a huge amount of unpaid work, in particular in more complex cases.

Christina Blacklaws, president of the Law Society, said This is a significant ruling. We have consistently warned that this fragile legal aid market cannot stand further cuts.

Ms Blacklaws continued: Defence solicitors have faced earning up to 37% less for some large cases, yet the Legal Aid Agency has expected them to undertake precisely the same amount of work.

The High Court strongly criticised some of the arguments put forward by the Lord Chancellor, commenting: It is difficult to express in language of appropriate moderation why we consider these arguments without merit. The first point, which should not need to be made but evidently does, is that consultees are entitled to expect a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent.

During the course of the litigation, it transpired that the Ministry of Justice (MoJ) had failed to disclose the statistical analysis underpinning the decision on LGFS,  which the court found had made the consultation process unfair.

Commenting on the methodology applied by the MoJ to justify the cut, Lord Justice Leggatt and Mrs Justice Carr DBE concluded that the calculation was a flawed analysis on which no reasonable authority would have relied. The court also made clear that the question whether a government measure impairs access to justice is a decision for the court, not the government, as in any case where a rights violation is alleged.

Christina Blacklaws commented: In the light of this ruling, we would urge the government to restart discussions to try to formulate a revised approach to the LGFS that will remunerate lawyers fairly for the work they have to do.

We recently published new data showing that in 5 to 10 years’ time there could be insufficient criminal duty solicitors in many regions across England and Wales, leaving individuals in need of legal advice unable to access justice. These concerning statistics underline the need for reasonable payment for this challenging work.

We are now considering the implications of the ruling for our members, and in the first instance we recommend that practitioners who have made relevant claims under the 2017 Regulations immediately apply for redetermination.

The Law Society's full review of the key points from the judgement can be viewed here.