Family practitioners will be aware of a difficulty with the application of the statutory charge in some cases. Failings by a local authority towards have led to damages being sought on behalf of the child under the Human Rights Act.However, where this is done within the care proceedings it meant the damages would be swallowed up by the statutory charge which recovered the cost of the care proceedings. A line of cases confirmed the proper approach was to bring the damages claim separately to the care proceedings. Although this would mean a separate legal aid certificate, there was still an issue around the extent to which these were connected proceeding within s25 LASPO, meaning the statutory charge would still bite to recover the costs of the care proceedings. See Chapter 5 of the Handbook for more.This issue has come to court again in the recent case of Northamptonshire County Council & Anor v The Lord Chancellor (via the ire County Legal Aid Agency)  EWHC 1628 (Fam). Francis J noted that the LAA has now agreed to publish an updated statement of its position in these cases. Although it has not yet done so, the LAA’s position statement in this case is attached to the judgment and can be viewed here. It says
[If] HRA damages are obtained outside of the care or other family law proceedings (e.g. within separate civil proceedings, or by means of a settlement outside of the care or other family law proceedings), only the legal aid expenditure incurred in respect of pursuing an HRA claim will be treated by the LAA as provided in connection with it. If the LAA is asked to give an early indication as to whether the statutory charge will apply to any HRA damages in these circumstances, it will request undertakings from the provider and counsel in the care proceedings that they will not make a claim for costs in respect of any HRA work carried out as part of the care or other family law proceedings. Once the undertakings have been received, the LAA will be able to confirm that the statutory charge will not extend to the legally aided care costs. Note that, unless a certificate or amendment to a certificate specifically authorising an HRA claim has been granted, there could be no valid claim for such costs in any event.
For the avoidance of doubt, legal aid expenditure in relation to the HRA claim will form a statutory charge in respect of any damages or costs recovered in the settlement of that claim, to the extent that a claim is made for costs from the LAA.
The LAA now clearly accepts that – provided proceedings are separate – the HRA damages will not be used via the statutory charge to recover the costs of the care proceedings. However any legal aid costs in the HRA claim will. Such cases will often be unsuitable for a CFA and the costs protection afforded by a legal aid certificate will be needed. Even if costs are awarded in the event of a successful claim they will not cover the legal aid only costs and perhaps not part of the substantive work. This leaves practitioners with the invidious choice of not claiming perhaps significant costs, or seeing them recouped from their child client’s damages. However this position seems as far as the law can go in these situations. Whether it is just for the state to recover costs from damages awarded to a child client for HRA breaches by the state is essentially a political and policy question, and perhaps one the forthcoming LASPO review may address.
UPDATE 11 July: The LAA has now published the statement on its guidance page here
The MoJ has responded to its consultation on proposals to cut PPE payments in crime LGFS cases. Despite 97% opposition from over 1,000 responses, it is pressing ahead with the proposal. From 1 December 2017, PPE payments will be limited to 6,000 pages, down from the current 10,000. Any extra will have to be claimed as discretionary special preparation fees.
The MoJ also confirmed that the delayed second 8.75% across the board fee cut will now not go ahead. It has yet to announce its decision on the proposal to cut fees for court appointees.
Filed under Costs, Crime, Policy
We’ve covered elsewhere the key LAA announcement – the timetable for the 2018 civil contracts tender – but there are a couple of other issues that’s it’s worth making sure didn’t get overlooked in the holiday season.
LAA online services – including CCMS, eforms, CWA, CCLF and the management information service – are accessed via the LAA portal. The portal is being upgraded on 11 September. It doesn’t seem that there will be a major overhaul of the look and functionality of the systems. But the LAA promises increased stability and faster log in times.
Crucially, following the upgrade all users will have to reset their passwords. In order to do that, they need to know their current passwords. So you should make sure that all users in your office know their current passwords and have checked they still work before 5 September – which is the last day for requesting a reset before the upgrade. More information here.
Meanwhile, online billing for Crown Court work (both AGFS and LGFS) will become mandatory from 31 October – more here.
Immigration practitioners looking for extra matter starts, including those that didn’t get any in the recent supplementary matter starts process, have been reminded that you can ask your contract manager for more matter starts when needed. The LAA has also issued news alerts drawing attention to the rules on claiming hourly rates and on refunding client travel in immigration cases. News articles like this can be a useful reminder of how the LAA sees the rules following feedback of difficulties, but also an indicator of potential audit activity – so are something immigration practitioners will want to take note of.
The Law Society has issued a new practice note setting out the requirements of the legal aid contracts and of professional conduct in deciding whether to accept instructions in criminal legal aid cases.
It reminds practitioners that, in the main, only duty solicitors acting as such are required to take on work – and then only of the types prescribed in the contract.
It also sets out the relevant professional conduct obligations. These apply both at the level of individual cases – such as the duty to advise of the availability of legal aid before accepting private instructions – but also at the level of practice management. There is a particular obligation on COLPs and COFAs to ensure their practices are managed responsibly, which includes financial prudence.
There is nothing new in the practice note but it comes at a time when changes to Crown Court fees and to court appointed work are under consideration (though no decisions will be made until after the general election). It reminds practitioners that they are not required to take on all cases and that there may be circumstances where there is a professional duty not to do so. The bar took a similar approach some years ago when it deemed criminal fees not to be a proper fee, thus exempting these cases from the cab rank rule.
Filed under Costs, Crime, Policy
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.