Six weeks after the High Court ruled that it was in scope of LASPO, the LAA has finally issued some guidance for practitioners.
Immigration contract holders can open matter starts for this work – and will be paid for it even if the MoJ appeal is successful. (Edit – it appears from the note on the LAA site that, if the appeal is successful, funding will stop at that point, even if partway through a case, but will not be retrospectively withdrawn).
Filed under Civil, Immigration, LASPO, Policy
Everyone who knows Carol Storer, Director of the Legal Aid Practitioners Group, wants to congratulate her on her OBE for services to legal aid. So we thought we’d join in!
Much has happened in the last couple of weeks, with the continued implementation of the LASPO reforms and the ramifications of the MoJ’s new consultation becoming clearer.
Transforming Legal Aid
Crimeline has an excellent page of resources dedicated to the criminal proposals, including meeting dates and minutes, resources for responding to the consultation and lobbying MPs and others and other material of interest. Civil practitioners will find many of the resources just as useful as criminal practitioners will. ILPA have placed a note regarding the civil proposals on their website, including cuts to JR, the residence test, and cuts to fees, which will be of interest to all civil practitioners, not just those in immigration. Young Legal Aid Lawyers also have useful material on their site. The MoJ are holding their own consultation events across the country.
LASPO implementation
Before moving on to the next round of cuts, practitioners are still getting used to the last set. The LAA are now onto the third edition of their FAQs following their training programme in March and April. All three versions are on our LASPO Resources page, since some of the answers have changed (as well as new ones being added) and practitioners may wish to rely on an answer in an earlier version if audited on work done before the release of the later version.
The LAA have also released further updated guidance, including new criminal manuals and revised civil costs assessment guidance; again, there are links on our LASPO Resources page. The LAA have also changed the telephone helpline for civil controlled work queries, and instituted a system for priority returns of rejected criminal bills.
Launch of Universal Credit
Universal Credit roll out starts today, initially in Ashton-under-Lyme and then more widely across the North West, before going national later this year. For the time being, it will be a passporting benefit for legal aid purposes (remember that capital passporting has been abolished, and so capital must always be assessed). More information here.
Expert witnesses
There have been two recent judgements in JR cases against the LAA in respect of expert witnesses. In R (JG) v Legal Services Commission, the Court held that the LSC / LAA were not required to pay the whole costs of expert reports where other parties were unrepresented but impecunious (see also Law Society comment here), while in R (T) v Legal Aid Agency a decision to grant prior authority in a lesser sum than sought was quashed for lack of reasons, with criticism of the LAA for failing to have regard to the necessity for the evidence found by the Judge in the case and failing to engage with a request by the Court to justify its decision.
Meanwhile, the LAA has issued guidance on funding for drug tests, which will be of importance particularly to family practitioners.
The Handbook
Both the electronic and paper versions of the Handbook have now been released, and we have created a new page on this site to keep the text up to date between now and the next edition.
Following the cases of Henthorn and Loomba, on when the LSC can recoup payments on account from providers, the Law Society have issued some guidance for practitioners. They anticipate an increase in recoupment activity and potentially legal action between providers and the LSC and if you carry out civil certificated work you should consider the guidance.
The cases made clear that the LSC is bound by the Limitation Act in its powers of recovery, and that the limitation period is six years, but that time runs not from the end of the case but from the date the costs are certain, i.e. the date of the detailed assessment. If costs are never assessed, limitation will not expire. The Law Society therefore advises firms to retain files for at least six years from the date of assessment of costs, and all firms should consider changing their procedures for file storage if they have not already done so.
Filed under Civil, Costs, Family, Immigration, Social welfare
The LSC says that 92% of bidders for family and Family with Housing contracts have been successful. This is good news for most; but of little consolation if you are in the 8%.
It has to be said that grounds for appeal are limited but if you are not being offered a contract, you will probably want to appeal. Paragraph 24 and paragraphs 31-34 in the Information for Applicants (IFA), contain the appeal provisions.
Appeals and legal challenges in respect of technical errors have generally not been successful historically. However, this year’s tender was on a non-competitive basis, so the case law relating to last year’s tender may not always be applicable.
We think appeals have a greater chance of success where there is an element of the LSC interpreting information supplied, for example, in relation to financial stability or whether decisions by the SRA should affect a firm’s bid.
It’s always worth appealing as decisions will partly depend on LSC policy in relation to this non-competitive process.
Filed under Civil, Family, Uncategorized
The High Court was recently called on to decide on the boundary between Very High Cost Cases and graduated fees in criminal work in The Lord Chancellor v Alexander Johnson & Co Solicitors & Anor [2011] EWHC 2113 (QB).
The solicitors, Alexander Johnson & Co, were instructed to act for a defendant in a serious multi-handed robbery case. They were not initially instructed, but took the case on a transfer of legal aid. A month after they became involved, the LSC (having been notified by another firm involved in the case), decided that it was a VHCC and therefore subject to VHCC contracts rather than the Litigator Graduated Fee Scheme. Three days after receiving the formal notification from the LSC, they replied indicating that their client was likely to plead guilty and refusing to enter a VHCC. Two weeks later he did plead guilty; four days after that the LSC responded to the firm confirming the classification of the case as a VHCC.
The solicitors and counsel then applied to the Crown Court for the Representation Order to be withdrawn and continued to represent the client pro bono. They claimed under the graduated fee schemes for litigators and advocates; the LSC refused and the Costs Judge allowed an appeal. The LSC then appealed to the High Court.
The solicitors and counsel relied on Paragraph 10 of the Criminal Defence Service (Funding) Order 2007, which as amended provides:
(5) Where a case becomes a Very High Cost Case after a representation order has been granted and is transferred from the litigator named on the representation order to a new litigator–
(a) the original litigator will be remunerated [at the same rates as those set out in Annex 7 to the Very High Cost Case contract]; and
(b) the new litigator will be remunerated in accordance with [that contract]
(6) Where a case becomes a Very High Cost Case after a representation order has been granted and the representation order is withdrawn before the end of the case, the litigator will be remunerated in accordance with the table following this paragraph as appropriate to the circumstances and timing of the withdrawal
One might think that that was determinative; a representation order had been granted, afterwards the case became a VHCC, the representation order was withdrawn before the end of the case. Therefore, “the table following this paragraph” (i.e. LGFS / AGFS rates) applies.
However, the Court held that the wider context needed to be considered. Paragraph 3 (6A) says that the Funding Order as a whole does not apply to VHCC work. Instead cases determined to be VHCCs are governed by individual case contracts. The purpose of paragraph 10(5) is to deal with cases where a non-panel member firm is instructed, the case becomes a VHCC, and as a result it has to be transferred to a panel member firm; the purpose of 10(6) is to deal with the same situation where the representation order is withdrawn rather than transferred. Alexander Johnson & Co, as a panel member firm, could not be paid LGFS rates simply by obtaining a withdrawal of the representation order once the case had been classified as a VHCC.
Davis J said that it has become “notorious” that legal aid rules lead to swings and roundabouts. In this particular case, the firm were £270,000 worse off by the decision to apply VHCC rather than LGFS rates, which is a pretty significant swing. That aside, however, it is perhaps unsurprising that the Court would find that, there being a scheme for payment of high cost cases, it could not be side-stepped by withdrawal of representation.
Civil legal aid lawyers taking judicial review cases have frequently come up against the Boxall principle (R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258), which has been applied as meaning that costs should not be awarded in cases that settle unless it is obvious which side would have won at a contested trial.
The effect in practice of this has been that public authorities have been able to settle or substantially concede cases but avoid paying costs.
The recent judgement of the Court of Appeal in Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 reviewed the rule in Boxall, noting that it pre-dated both the introduction of the Judicial Review Pre-Action Protocol and the Jackson Report, and held that
61. In the case of publicly funded parties, it is not a good reason to decline to make an order for costs against a defendant that those acting for the publicly funded claimant will obtain some remuneration even if no order for costs is made against the defendant. Moreover, a culture in which an order that there be no order as to costs in a case involving a public body as defendant, because a costs order would only transfer funds from one public body to another is in my judgment no longer acceptable.
…
65. When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol. I regard that approach as consistent with the recommendation in paragraph 4.13 of the Jackson Report.
For detailed analysis of the case, see the Nearly Legal and Free Movement blogs.
The effect is that it is now more likely that costs will be awarded when a case is settled or withdrawn by consent as well as when it succeeds at trial. Given that – as the Court of Appeal noted – civil legal aid rates have not increased since 1994 (and are shortly to be cut by 10%), the increased availability of inter partes costs is a welcome development.
Filed under Civil, Costs, Immigration, Social welfare
Legal aid practitioners know what it is like to operate on tight finances, and know that the necessary resources to keep up to date with the law and provide a good service to clients usually don’t come cheap. Yet one of the best of those resources, the BAILII website, is completely free of charge. But it is only free because of the generosity of its supporters. It is not a government website or in any way official. It is run and operated by a charitable trust, and is currently facing financial difficulty which threatens its future existence. As a result it has launched an appeal for support.
Leaving aside the importance, in a society under the rule of law, of the law being freely available to the public – to which BAILII makes a huge contribution – it provides practitioners with a tremendous resource. If you have made use of it at any point, you will realise its value. You can donate to the appeal here.
Filed under Policy
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