Alongside the consultation on AGFS, the MoJ has launched another – this time on LGFS and on fees for court-appointed advocates to cross-examine on behalf of unrepresented defendants.
The LGFS consultation proposes reducing the PPE limit from 10,000 to 6,000 pages, with anything over that being paid as special preparation rather than PPE. The justification is to reverse increases on overall spend since costs decisions widening the definition of PPE in cases involving electronic evidence. It is said to represent a temporary measure pending wider reform of LGFS.
Although no firm announcement has been made and a connection is not explicitly drawn, the paper strongly suggests that the second 8.75% fee cut for litigators, postponed for one year by Michael Gove, will not be introduced only if this change is made instead.
The paper also contains a separate proposal to reduce the fees paid to court appointed advocates in cases where unrepresented defendants are prevented from cross-examining complainants in person. Currently “reasonable fees” are allowed; it is proposed to reduce that to legal aid rates.
The consultation paper can be found here, and closes on 24 March 2017. Practitioners will need to give it careful thought and respond accordingly. It is explicitly designed to reduce the costs payable in more complex Crown Court cases – the impact of that will vary from firm to firm and may be more or less than the across the board 8.75% cut in individual cases.
The MoJ has launched a consultation on changes to advocacy fees for Crown Court work. The changes are designed to be cost neutral across the budget as a whole, but both shift payments around between case types and break down the single case fees into fees based on stages of the case. The paper proposes a return to individual fees for individual hearings. It also, in most cases, moves away from using pages of prosecution evidence (PPE) as a proxy for case complexity, relying more on the nature and classification of the offence; there are more classes proposed than currently.
The proposals have been welcomed by the Bar Council, but criticised by the Law Society as effectively removing money from junior practitioners to increase pay for more senior ones.
Criminal practitioners will want to consider the proposals carefully, especially the potential impacts on their own practice. The consultation closes on 2 March.
The MoJ has issued a consultation paper on advocacy in criminal cases in the Crown Court and above. It is aimed at the preservation and enhancement of quality of advocacy, though most of its practical measures appear to have been lobbied for by the Bar with the aim of protecting it from competition from solicitor advocates. The evidence base for the proposals in the paper is thin and anecdotal.
Key proposals are:
- The introduction of a panel of defence advocates. All advocates instructed in publicly funded Crown Court cases must be on the panel, which would sit alongside rather than replace QASA.
- There would be a statutory ban on referral fees to strengthen the current contractual and regulatory bans. This would include “disguised” referral fees, where payments described as administration and management fees are in fact payments in return for the provision of instructions.
- Stronger measures to protect client choice and safeguard against conflicts of interest – which means in practice restricting the use of advocates employed by the litigator firm. Proposals range from a mandatory declaration of advice given to a client on choice of advocate to an outright ban on using advocates employed in the same firm.
It is interesting timing that this paper was published before the results of the crime duty tender, expected this week. If the proposals are enacted, they will – depending on which proposals and how – have an impact on bidders ranging from an additional administrative burden to a ban on an entire business model. Given that many firms will have factored a degree of in-house advocacy into their business modelling and decision making on the sustainability of the contracts, it is unfortunate that such potentially significant changes are proposed after bids were submitted and that firms will have to confirm acceptance or rejection of contract offers without knowing if the basis of their business model will fundamentally change. It is also ironic that a measure aimed at protecting client choice does so by restricting client choice.