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.
The LAA is to increase the default costs limits on a range of civil certificates. The new limits are:
- Actions against the police etc – £6,000
- Community care – £3,500
- Immigration and asylum- £4,500
- Mental health – £5,000
- Special Children Act cases – £9,000
The new higher limits apply only to substantive cases within the category, not to judicial review. Certificates for judicial review cases, and for categories not listed above, remain at existing default limits. The process for applying to amend a costs limit hasn’t changed, but the LAA hopes fewer applications will be necessary.
Emergency certificates remain at a default limit of £1,350 – though you can exercise the delegated function to amend the cost limit up to £10,000 as long as it is to do urgent work and the emergency certificate hasn’t expired or been subsumed into a substantive one.
Our co-editor Anthony Edwards – responsible for the crime sections of the Handbook – has produced a new edition with Colin Beaumont of his book on criminal costs. Criminal Costs: Legal Aid Costs in the Criminal Courts is a comprehensive guide to the incredibly complex world of criminal costs, with full discussion of all the regulations, contracts and caselaw. It is fully up to date, including the 1 April 2016 changes, a perfect companion to the Handbook, and a vital addition to the bookshelf of any criminal practitioner. You can buy the paper copy here and the e-book here.