Contract Notices (Clause 24.2) and how to challenge them
by Legal Aid Contracts Expert Mark Gaskell
The first thing to understand about the Legal Aid Agency’s Standard Contracts Standard Terms is that that they have remained static for a very long period of time. Very few of the errors that they contain, obvious to many commercial contract drafters, have been rectified. So it’s always worth considering whether what the Legal Aid Agency is proposing in your case is something they are able to do.
Historically the Legal Aid Agency has set targets for the issue of Contract Notices and Contract terminations. This appears to have ceased, at the latest, at the start of the pandemic but there is always the possibility of a return to the practice. Contract Notices can lead to termination of your Contract (see Clause 24.1) if they come to evidence “3 breaches of the same term within any 24 month period or 6 breaches of this Contract within any 24 month period.”
For these reasons alone it is advisable to challenge any Contract Notice as early as possible.
Arguably the Legal Aid Agency cannot issue a Contract Notice for any breach of the Civil Specification because the Specification defines its provisions as “General Rules” and not “terms”, the definition in Clause 24.1 of the Standard Terms. You should consider challenge of any Contract Notice for breach of the “General Rules” in the Civil Specification on the grounds that you have not breached a “term”. Remember the Contra Proferentem rule – any ambiguity in the Contract is construed against the drafter.
Challenges to the issue of a Clause 24.2 notice (a Contract Notice) are, in the first instance, brought by way of a request for “informal reconsideration” under Clause 27.1. This is undertaken by the Contract Manager who issued the Contract Notice and their Area Contract Manager and is usually of limited use for that reason. The Legal Aid Agency is under a duty to act proportionately and reasonably and certainly, if your Contract manager is trying to meet an arbitrary target this duty may not have been given appropriate weighting. The issue of a Contract Notice is also, again arguably, a Sanction (not all Sanctions are listed at Clauses 24.5 – 24.14 and are scattered throughout the Contract) in which case there is specific provision in relation to proportionality at Clause 24.4.
If you fail at the informal reconsideration stage then you can invoke the “formal review procedure” detailed at Clause 27.4 (a) of the Contract. The steps you will need to take start at Clause 27.9. As the title suggests this is a more formal process where the Chief Executive, through her legal team, becomes involved and where the actual provisions and the proportionality of the decision will be considered.
Let us know if you have any questions or require any assistance with any individual instances where you are not happy.
Next week “Attestation” – a secret process where your firms finances are scrutinised in detail by a selection of staff from the Contract Management and Assurance Team – overseen by one of three National Contract Managers.
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challenge Legal Aid Agency contract notice – legal aid sanctions – challenging legal aid vendor holds – LAA Contract Notices (Clause 24.2) how to challenge them