Legal Aid Reform
The main news this week was the announcement that implementation of the legal aid reform programme has been delayed by 6 months to April 2013. So what does it mean?
Fee cuts to civil and criminal work have already happened, and family follows in February 2012. Those cuts are not affected. New family contracts will start in February 2012, and they too are not affected.
The telephone gateway, the proposed civil and family scope cuts and the changes to eligibility will now take place in April 2013. This probably means that there will be a consultation in spring / summer 2012 and a tender exercise in autumn 2012. The abolition of the LSC will also take place in April 2013.
The consultation on criminal competitive tendering will now take place in Autumn 2013, with tendering in Autumn 2014 and price-based contracts in 2015, with civil and family to follow at some point thereafter.
It is really important to note that this announcement makes no difference to the substance, merely the timing, of the government’s plans. The parliamentary timetable is unaltered and it will be in the House of Lords over the next 3 months or so that the final shape of the new legal aid scheme will emerge.
Following the Henthorn judgement, the Law Society have released a statement with some advice to practitioners, with the promise of more to follow. They recommend that solicitors change their file retention policy to keep closed files for at least six years following assessment of costs rather than the end of the case. The Law Society is pursuing its complaint of maladministration to the Parliamentary Ombudsman and promising to intervene in any Supreme Court appeal that may take place. In the meantime, solicitors confronted with a demand for repayment from the LSC are referred to Focus 34 and Focus 41. See also the deed of settlement following the 2007 JR.
Crimeline reported this week a judgement from the High Court, Lord Chancellor v McClarty & Co. Before the Costs Judge, the solicitors had been allowed to claim time spent in listening to audio tapes not transcribed as special preparation, on the basis that they were capable of being reduced to pages of evidence even though they had not in fact been transcribed. On appeal, it was held that that was outside what was allowed in the Regulations. Special preparation can only be claimed for “pages” and “documents”, which includes written material served electronically, but not audio or video material. It was also held that there is no power to pay enhanced rates for special preparation.