Anyone who practises within the realm of Legal Aid and anyone with a keen interest in it (if you’ve found this blog - that’s you) should carefully consider the Government’s published proposals here:
http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm
And then download, complete and submit the Consultation Questionaire:
http://www.justice.gov.uk/consultations/docs/legal-aid-reform-consultation-questionnaire.doc
The government’s well-publicised plan for cuts to the Legal Aid budget which are in consultation until February could be scuppered by a pledge from the EU to set mandatory levels of civil and criminal legal aid for member states from 2013.
In a speech to the Council of Bars and Law Societies of Europe, Commissioner for Justice Viviane Reding said that access to justice was a “fundamental right” and in line with article 47 of the Charter of Fundamental Rights and as such, governments must make legal aid funding available to litigants and defendants in civil and criminal case who otherwise could not afford representation.
The Law Society’s head of Legal Aid Policy Richard Miller said of the move:
‘The UK government’s proposed cuts to legal aid will put us out of step with the rest of Europe, which is embarking on a programme of broadening access to publicly funded representation, not shrinking it. There is a real danger that the proposed cuts will make us dip below the minimum standards imposed by the EU. We will have to make a humiliating U-turn and drag ourselves back up to an acceptable level.
Here are a few cautionary tails for practitioners contemplating registering their case as a High Costs matter
- Make sure that you have extended the costs limitation on your Public Funding certificate to the maximum £25,000 before registering the matter as being High Costs with the Special Cases Unit. I have dealt with several cases where there was a limit of say £10,000 and the Solicitor realised that costs had gone above £25,000. In panic, the matter was registered. However, at the point of registration, the matter moves away from being administered under the General Civil Contract and onto an individual case contract. The upshot of this is that the previous costs limitation in absolute for pre-contract costs, so the Solicitor has lost out on £15,000.
- If the “main hearing” exceeds ten days Counsel escapes the family Graduated Fees Scheme and can apply his normal private practice rate. This is retrospective and will apply to previous fees, even if they have already been remunerated under the FGF scheme. The SCU maintain that they are aware of the impact of this on costs limitations, but it is good practice to stay one step ahead of this.
The Special Cases Unit in Docklands now insist on High Costs Cases that they handle are remunerated on an “Events Basis”. Docklands only deal with High Costs Cases where authority have been granted to instruct a QC or more than one Counsel. This also includes cases where authority has been granted to instruct a “Leading Junior” with a Solicitor Advocate acting as “Junior”. All other High Costs Cases are to be dealt with in the usual way by the Special Cases Unit in South Tyneside.
The beauty of the system for practitioners is that it cuts out the rigmarole of billing the matter at the end of the case; you are paid at the end of the matter the number of events agreed with the SCU in advance. An event for a Solicitor is any hearing day or Advocates’ Meeting as envisaged by the PLO. For Counsel, it also includes substantive client conferences. In this context, “substantive” does not include telephone conferences or conferences without the client being present.
The events pricing is as follows:
Solicitor - £1,230.00
Junior Counsel - £1,320.00
QC - £2,310.00
“Leading Junior” - £1,850.00
Solicitor advocate as “Junior” -£2,000.00
2x Juniors - £2,640.00 in total to be apportioned as agreed
If the number of events changes significantly, a revised plan can be submitted. If there are changes because the final hearing or other main hearing overruns or goes short, there are “refresher” rates to either add or deduct as required in the sums of £500.00 for Solicitors, £800.00 for Junior Counsel and £1,500.00 for QCs.
Disbursements are of course outside the scheme and are remunerated in the usual way, with payments on account by the usual process.
I have now undertaken the preparation of several of these events based plans, so if you require assistance please contact me.
The Legal Services Commission has announced that it will not lodge an appeal against the Law Society’s successful Judicial Review challenging their family tender process. The Commission stated that an appeal would only prolong uncertainty over the future of the family contracts, causing difficulties for clients and providers.
The commission has said that it is consulting with representative bodies and the MoJ on the future of the tendering process and is considering the future extension of the unified contract, which currently runs until midnight on 14 December 2010 as well as the harmonisation of family fees and the allocation of new matter starts.
Bill Callaghan, the LSC chair said:
‘Our priority must always be to ensure that family legal aid clients get the help and legal advice they need. We still have some work to do but we hope that this constructive engagement with the profession will help to provide certainty for clients and providers.’
In response, Linda Lee, Law Society president said:
‘We are pleased that the LSC has expressed an eagerness to engage with the Law Society and the solicitors’ profession on this matter, and we hope it will now recognise that the Society and its members’ insight and experience can make a valuable contribution to the reshaping of legal aid and legal service provision.’
The Government’s Spending Review has confirmed that there will be a “6% reduction” each year for four years to the Ministry of Justice. In real terms this is a reduction of 23% - down from £8.9 billion to £7.3 billion. Some of the savings will be as a result of reforms to stem the “unsustainable rise in the UK prison population”; the closure of up to 157 “under-utilised courts”; reducing MoJ back-office and administration costs by 33%; the MoJ’s capital spending to be cut by 50%; and the MoJ’s central London estate to be reduced from 18 buildings to four. However, major concerns amongst Legal Aid Practitioners in relation to the plans to reform and restrict Legal Aid with an announced £350m reduction.
This is how Law Society President Linda Lee responded to the Review:
‘While the figure of £350m is less than some had feared, losing this amount of money from the system will inevitably prove to be a significant blow to legal service provision and access to justice. A creaking system is going to be less able to deliver the needs of the vulnerable in society.
‘It is a basic feature of a democratic society which supports the rule of law that vulnerable people, whether they are children, or have mental health or housing problems, are accused of crimes or have suffered loss, are able to have access to legal advice and representation to secure justice.
‘The legal aid budget does not have to be cut by restricting its availability. The best approach is to tackle the need for legal aid such as simplifying the law, addressing poor decision making by public bodies, and by reforming inefficient Court processes - the real causes of the rising expenditure.
‘The legal aid budget has remained static for the past six years. It is in no state to deliver yet more cash savings and it is the vulnerable who desperately need this front line service who will suffer. We will study the details of the consultation when they are available and will respond constructively. However, there can be no doubt that these cuts could cause significant damage to justice in our society.’
Quite how this affects the Government’s commitment to preserving ‘assess to justice’ remains to be seen against the backdrop of the LSC moving away from being a Non-Departmental Public Body. In response to a written parliamentary question by Lord Bach, Minister of State Lord McNally replied:
“The Government agrees with the previous administration’s commitment to replace the Legal Services Commission with an executive agency of the Ministry of Justice believing that this will strengthen accountability for and control of the legal aid fund.“
The LSC has been dealt a body blow arising out of the Judicial Review brought by the Law Society in relation to their tender process for the new family contract, which had been due to come into force on 14 October, but has since been dropped back to 15 November. This is what the Law Society says:
The Law Society has secured a victory for families across England and Wales after the High Court decided to quash the outcome of the tender round for new family legal aid contracts.
The High Court today declared that the Legal Services Commission’s (LSC) family legal aid tender round was unlawful and severely hindered access to justice for vulnerable children and their parents.
The decision follows a three day hearing of the Society’s application for judicial review at the Divisional Court.
Law Society president Linda Lee said today’s win is a victory for the thousands of families who would have been left without access to legal assistance when faced with state intervention in their family or the consequences of the breakdown of a relationship.
‘The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid. We are extremely disappointed to have been left with no choice but to take legal action against the LSC, which refused to acknowledge the detrimental effect that this outcome would have on families.
‘The LSC’s actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2,400 to 1,300. That would have translated into thousands of people facing grave difficulty in obtaining justice – ordinary people who are already facing extraordinary difficulties. Legal aid clients are some of the most vulnerable in society and access to legal representation where required is their only hope of achieving justice.
‘The Law Society has always maintained that this wholly unplanned major restructuring of the legal aid market would cause immense uncertainly and instability for many of the poorest and most vulnerable. It is regrettable that the LSC didn’t stop to consider the consequences of its actions, before pushing ahead and cutting vital services that clients need and that a civilised society expects to be provided.
‘We hope that whatever steps the LSC now takes will see legal aid contracts properly distributed across England and Wales to ensure all families in need have access to justice. I thank the Divisional Court for deliberating speedily on this important judicial review application.’
