by Simon |
December 23, 2011 · 11:49 am
Legal aid bill
As we reported earlier in the week, the Parliamentary Joint Committee on Human Rights criticised a number of aspects of the bill, points that were echoed in the first day of the Lords Committee Stage on Tuesday. The transcript of that debate is here, and the bill homepage on the Parliament website is also a useful resource.
Family Advocacy Scheme
The LSC have issued guidance (PDF) on claiming for work done under FAS. See also the announcement on the LSC website for more information.
Immigration and Asylum court fees
New court fees for some immigration cases have been introduced. Legally aided clients will not be required to pay the fee, and those who become legally aided during the life of the case can apply for a refund. However, if the fee is paid it is not a recoverable disbursement, since legally aided clients are exempt from paying the fee.
In other news
We reported this week also on the appointment of a new LSC chief executive, Matthew Coats, and on a potentially important development for firms not awarded a contract in the recent tender round.
Finally, have a very peaceful Christmas break and our best wishes for the year ahead.
by Simon |
October 23, 2011 · 3:28 pm
The LSC have now published the revised civil Costs Assessment Guidance for cases affected by the October fee cuts. The key points to note are the passages concerning payment of experts’ fees from para 3.39 onwards. Para 3.41 sets out the LSC’s approach to joint experts where one party is non-legally aided; this will be vital for clinical negligence and housing practitioners, among others, to note. In short, the position is that the LSC will pay half (or other fraction depending on the number of parties) the hours incurred at a rate not exceeding the prescribed maximum. Where there are different maximum rates for London and non-London, it is the location of the expert’s office that decides which applies. Barristers will want to note para 13.11 onwards, dealing with the new prescribed rates for counsel in non-family cases.
The third reading of the legal aid bill in the House of Commons has been delayed a week and will now take place on 31st October and 1st and 2nd November. This gives you an extra week to use Justice for All’s tool to email your MP.
Finally, the invitations to tender for immigration contracts announced last week have been delayed, and will be published on Monday 24th October.
Filed under Advocacy, Civil, Costs, Immigration, Legal aid bill
Tagged as advocacy, civil, costs, disbursements, experts, legal aid, legal aid bill, tenders
by Vicky |
October 1, 2011 · 7:49 pm
Even those legal aid practitioners who generally take a more optimistic view than the Boomtown Rats may find themselves concurring this week. There’s a lot happening and none of it is exactly good news.
- The Family with Housing tender closes at noon on 3rd October.
- New maximum experts fees come into force for cases started on or after 3rd October for both civil and criminal cases
- 10% fee cuts apply to civil cases (both controlled and certificated) for cases strated on or after 3rd October (fees for family and family with housing cases under the Unified Contract will notbe cut until 1st February 2012)
- In Crime new fees will apply in the Magistrates’ Court, and London weighting will cease for such cases
- In particular, solicitors will no longer be paid for representing defendant clients in either way cases under a representation order, if clients are committed for trial
- There will also be changes to the online reporting system for civil and crime
Filed under Advocacy, Civil, Costs, Crime, Family
Tagged as advocacy, civil, costs, crime, disbursements, experts, family, tenders
by Simon |
September 20, 2011 · 7:51 pm
Following our post last week HHJ Altman has revised his guidance to take account of the need to apply for prior authority as a pre-condition of exceeding the prescribed maximum rates for experts. The revised guidance is available here.
Practitioners should note that it is the date of application for the certificate, not the date of the hearing, that determines which rules apply and the new rules only apply to cases where the certificate was applied for on or after 3rd October 2011, or the application received by the LSC on or after 10th October 2011 (see para 13 of the Funding Order and new para 1.58 of the Unified Contract Specification).
by Simon |
September 16, 2011 · 7:32 am
UPDATE 20th September 2011: The guidance has now been revised. See our later post. The original post follows below.
As the countdown to 3rd October continues, concern is growing among practitioners not only about their own fees but about the position regarding experts. There are very real worries that experts will simply be unwilling to work for the new prescribed rates.
HHJ Altman, the Designated Family Judge for London, has issued guidance on the approach the Courts should take to these cases, particularly childcare matters. The guidance is available here.
However, the order suggested in paragraph 2b, which appears to say that the Court deems a fee above the prescribed rate appropriate and further deems that an application for prior authority would cause undue delay and therefore presumably can be dispensed with, does not fit with what the Contract says.
The contractual position – see new Unified Contract specification para 8.38 / Standard Contract specification para 6.62 – is that the prescribed rates can only be departed from IF the LSC have given prior authority and IF particular circumstances – which are not quite the same as those in the suggested Order – exist.
The Court can not disapply the contractual rules (which directly replicate what is in the Funding Order) and it would be a brave practitioner who instructed an expert at more than the prescribed rates on the basis of such an Order, in the hope that the LSC would therefore not rely on the Contract. The Judge does go on to say that the expert “may be vulnerable” to assessment down of their rates; whether it is the expert or the solicitor who in fact suffers any reduction will depend on the terms of the letter of instruction and if expecting experts to be subject to assessment, solicitors should be upfront with them about the risks – in this situation, they are considerable.
An Order in the terms suggested can authorise you to instruct the expert in the proceedings, but it can’t require the LSC to pay the bill.
This is the wording of the new Contract rule:
Where you instruct an expert to deliver services of a type set out in Part 14 of the Payment Annex we will not pay fees in excess of those set out in that Part unless:
(a) we consider it reasonable to increase such fixed fees or rates in exceptional circumstances; and
(b) we have granted prior authority to exceed such fixed fees or rates on such basis.
Subject to such limits where applicable, the amounts claimed for the provision of expert services must be justified on detailed assessment by the court or Assessment by us in the usual way. For the purpose of this paragraph 8.38, “exceptional circumstances” means that the expert’s evidence is key to the client’s case and either (i) the complexity of the material is such that an expert with a high level of seniority is required; or (ii) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
by Simon |
September 5, 2011 · 7:53 pm
The LSC have published more documentation on the implementation of the October fee cuts. It is important to read the full announcement on their website, which covers civil, crime and family, and solicitors, barristers and experts. In short everyone working in legal aid needs to know how their cases and their income will be affected.
- Unified Contracts (for family and housing with family firms)
- Standard Civil Contracts (all other providers)
- Standard Criminal Contracts
- The payment annex and Funding Order Schedule containing the revised fees
- A new form – LAC1 – which must be completed by advocates acting at committals and signed by the Court legal adviser in all cases where the Court directs the case to be heard at the Crown Court. Presumably this form is to prevent the LSC from paying the £362 litigator / £203 advocate fee applicable in cases where the Court accepts jurisdiction but the defendant elected jury trial.
The LSC have created a training programme which can be accessed here.
How are you affected?
- Civil (non-family) solicitors and agencies – fees are cut by 10% on all cases started on or after (or certificates applied for after) 3rd October
- Civil barristers – payment rates are specified by contract and included in the payment annex for the first time, again only for new cases
- Criminal practitioners – advocate and litigator fees are cut for all cases started on or after 3rd October
- Experts – fees are now prescribed for all cases starting on or after 3rd October whether civil, crime or family. “Expert” is defined broadly to include not just those traditionally thought of as “expert witnesses”, but also almost all professionals whose services are commissioned as part of a case, such as for example interpreters, process servers, etc. Practitioners should study the list of prescribed expert fees to ensure that any services they commission are done so within the fees. There is provision for exceeding the fees in the respective contracts but 0nly in limited exceptional circumstances. This document summarises the position for both civil and criminal cases.
Filed under Advocacy, Civil, Costs, Crime, Family, Immigration, Social welfare
Tagged as advocacy, civil, costs, crime, disbursements, experts, family, immigration, legal aid reform, social welfare
by Vicky |
August 27, 2011 · 9:54 am
There is an ongoing dispute between the LSC and practitioners about experts fees in public law family cases. Amongst other things, the LSC is reducing fees on assessment and blaming practitioners for failing to obtain prior authority.
This puts practitioners in a difficult position, to put it mildly, as the expert will usually have been paid long before the case is closed. The practitioner may well have to bear the loss.
However, we have found evidence that explains why practitioners have not been protecting themselves to a great extent by obtaining prior authority – the LSC asked them not to!
See Focus 48:
‘ Solicitors are urged not to seek prior authority in cases subject to the Protocol for Judicial Case Management in public law Children Act cases unless the expense involved is exceptional in amount or nature (for example it relates to a residential assessment or is in excess of £5,000 per funded client). This is because the process is discretionary and generally no prior authority is justified to incur costs in relation to obtaining a report or to a court attendance by an expert whose instruction and work has been authorised specifically by the court. Applications for prior authority may serve only to delay the instruction of the expert and the court timetable for the proceedings. However, an amendment to the costs limitation may still be necessary.Where prior authority or an amendment to the costs limitation is sought, details of the work to be undertaken, the rates applied and the total cost apportioned to the funded client must be provided (including, in any case where it is relevant, confirmation that any charges for or expenses in relation to treatment, therapy, training or other interventions of an educative or rehabilitative nature have been identified, costed and excluded).’
by Simon |
July 8, 2011 · 8:00 am
There are significant changes to family work set out in both the bill and the accompanying consultation response.
What’s in the bill?
See part 2 of this series for how the bill works. The detail of what will remain in scope is set out in Part 1 of Schedule 1:
- Proceedings for the care, supervision and protection of children:
High Court inherent jurisdiction
Services to an parent or person with parental responsibility seeking to prevent the unlawful removal of a child from the UK and applying for:
- s25 Children Act 1989 (secure accommodation orders);
- Parts 4 and 5 Children Act 1989;
- approval by a court of arrangements to assist children to live abroad under para 19, Schedule 2, Children Act 1989;
- parenting orders and child safety orders under Crime and Disorder Act 1998;
- contact under s26 Adoption and Children Act 1989;
- applications under s36 Adoption and Children Act 1989;
- placement orders, recovery orders and adoption orders under Adoption and Children Act 1989;
- orders under s84 Adoption and Children Act 1989 relating to adoption abroad;
- services in relation to an order made as an alternative to, or heard in related proceedings with, one of the above;
- plus there is a power to add further types of case by regulation
Services in relation to domestic violence proceedings arising out of a family relationship
- a prohibited steps order or specific issue order;
- an order for disclosure of the whereabouts of the child;
- a requirement for surrendering of a passport of a child
Private law family cases otherwise excluded where an adult client has been abused or is at risk of being abused by another individual arising out of a family relationship. Abuse is defined in the bill as both physical and mental abuse, including sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation. The consultation response (Annex A, paras 42 and 53) says that only where there has been an order or conviction in the last 12 months, ongoing criminal proceedings, a referral to a Multi-Agency Risk Assessment Conference or a finding of fact of domestic abuse will legal aid be granted. Those restrictions are not in the bill, although it does empower the Lord Chancellor to make regulations providing for “when matters arise out of a family relationship”. Legal aid is only available to the victim, not the perpetrator. A family relationship has the same meaning as in Part 4 of the Family Law Act 1996. Conveyancing to give effect to an order is also allowed.
Cases where an adult client is seeking to protect a child at risk of abuse (defined the same as above) by proceedings under s4(2A), 6(7), 8(1) or Part 2 Children Act 1989, or s33(1) or 34(1) Family Law Act 1986. Legal aid is not available to the person alleged to be the source of the risk. Although this is not in the bill, the consultation response states that legal aid would only be available where there are ongoing criminal proceedings for child abuse, there is or has been a child protection plan in place within the last 12 months, or there has been a finding of fact that child abuse has occurred.
Mediation in family disputes, and advice in connection with mediation in family disputes (the Part 2 exclusion of trust law matters is dis-applied, so mediation on those matters is also permitted). Conveyancing to give effect to an agreement is also allowed.
Advice and representation of a child (under 18) where the child is the applicant, respondent or a party under rule 16.2 or 16.6 Family Proceedings Rules
Forced marriage protection orders
EU and international agreements concerning children and maintenance
Judicial review, provided there is a benefit to the client or a member of their family
- in relation to home rights, occupation orders and non-molestation orders under Part 4 Family Law Act 1996;
- for an injunction following assault, battery or false imprisonment;
- under the inherent jurisdiction of the High Court to protect vulnerable adults
All other cases are out of scope.
Part 2 of the bill deals with litigation funding, and the key provision for family practitioners is the creation of a legal services order. Clauses 45 to 50 of the bill amend the Matrimonial Causes Act and Civil Partnership Act allowing the court to order that one party to ancillary relief proceedings pay an amount (lump sum or instalments) to the other party to enable them to fund their legal costs. The court must be satisfied that the receiving party would not otherwise be able to pay the costs, and the order may be for all the costs or a contribution towards them, and may be for all or part of the proceedings. Legal aid is not available to fund an application for such an order.
What’s in the consultation response?
Annexes A and B contain more detailed discussion of the reasoning behind decisions whether or not to remove particular proceedings from scope, including the limitations on availability of legal aid to protect from domestic violence or child abuse (see 5 and 6 above).
Family cases are excluded, for the time being, from the mandatory telephone gateway, although the government intends to expand the existing (optional) Community Legal Advice telephone service and, subject to a review, expand the mandatory gateway to other areas of law potentially including those areas of family law remaining in scope.
The eligibility changes (see our post) will apply to family law as to all areas. The LSC will also restrict the circumstances in which QCs can be used in family cases, in line with the proposals in the consultation.
What about fees?
All fees will be cut by 10% from the start of new family contracts in February 2012. The fees schedule sets out the changes to individual fees, but the broad structure of the payment regimes remains unchanged. The revised fees start at page 51 of the schedule, with the new FAS fees from page 63. Enhancements in hourly rates cases will be capped at 50% in the County Court and 100% in the High Court and above, with the proviso that there will be no pro rata reduction below that – so a case that currently attracts 30% enhancement now will get 30% in future, but a case that currently gets 60% will in future get 50%.
Expert fees will be codified and reduced by 10%, with provision for exceptional cases, and there will be further work on moving to a system of fixed and graduated fees for experts in the longer term. The full table of expert rates can be found at page 72 of the fees schedule.
by Simon |
May 28, 2011 · 1:00 pm
Subscribers to LAPG‘s very useful update email will this week have seen a link to the LSC’s guideline rates (PDF) for experts, which were found by an LAPG committee member on an external website but do not appear to have ever appeared on the LSC website or been made publicly available by the LSC. Whilst they are guidelines not maximums, it is getting ever harder to persuade the LSC to depart from them on prior authority or assessment and therefore the fact that they are now publicly available is welcome, though it is regrettable that it was not apparently the LSC that made them available.
There is, however, some useful information about experts on the LSC website, including links to relevant LSC and civil, criminal and family procedure rules, as well as a helpful summary (PDF) of when expert fees are payable on legal aid and when from central funds.
LAPG is asking members to report problems with experts and particularly with the application of the guideline rates.
Update note – these rates don’t apply any more. For current expert rates, see the criminal and civil remuneration regulations, on our Resources page
by Simon |
May 27, 2011 · 6:19 pm
After a quiet week last week, there has been something of a flurry of announcements on the LSC website this week.
The LSC has produced a checklist for proof of means to accompany civil applications. This is a useful checklist to keep to hand, since in recent months the LSC has tightened its requirements for proof following pressure from the National Audit Office and as a result some practitioners are finding that more applications are being rejected. For the same reasons, bills must be accompanied by receipts or invoices for all disbursements over £20.
In crime, the date for mandatory use of the new AF1 form (version 2) has been extended to 30th June 2011 due to problems with release of the new form.
Even where applications and bills are submitted with all the paperwork in order, practitioners are finding that turn-around times are increasing. The LSC publishes (for both civil and crime) on its website every week a summary of where it is in dealing with its backlog but has requested that civil practitioners do not contact it to chase progress until cases have fallen outside the published service standards. No official announcement has yet been made regarding resolution of the ongoing problems with criminal graduated fee payments, but we understand that the LSC is hoping to implement IT changes in early June that will begin to tackle the problem. While it is welcome that the LSC is relatively open about its performance, many practitioners will think it unacceptable that they have to wait so long for applications and payments to be dealt with. A target of 8 weeks – which is often missed – would not be acceptable for payment in any other industry. Where the LSC falls short of the very generous standards it has set itself, practitioners may wish to use the complaints procedure, reminding the LSC of its discretion to make compensation payments if loss has been suffered as a result.