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appeal is successful, funding will stop at that point, even if partway through a case, but will not be retrospectively withdrawn).
Tag Archives: caselaw
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.
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.
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 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.
- Hoole & Co v Legal Services Commission  EWHC 886
- Harrow Solicitors & Advocates v Legal Services Commission  EWHC 1087
- Hossacks (A Firm) v Legal Services Commission  EWHC 2700
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.
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  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.
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.