Jonathan Brennan

LASPO - what next?

Tue, 24 Jan 2012 11:27:11 +0000

So, where are we at with the Legal Aid, Sentencing and Punishment of Offenders Bill? Good question, and one that I will answer as best as I can, given that it is tied up with the minutiae of parliamentary process.

The bill was before the Lords in mid-January with opposition from peers from all parties, many of whom were proposing amendments, particularly to the sections in relation to eligibility and scope of Public Funding (Legal Aid). One such amendment, surprisingly proposed by Lord Tebbit, was to reinstate public funding for clinical negligence cases. However, after many hours of debate, the amendments were withdrawn one by one and the bill passed through the house.

What’s going on here? What seems to be the case is that the peers who are opposing the bill saw no merit in defeating the bill in the Lords, as they feel that a more effective tactic is to use the eight days of committee meeting to stage shows of strength to obtain concessions from Coalition ministers. Once ministers have been given a chance to compromise with regard to the content of the bill in committee and there is a vote at that stage, it cannot be revisited in the same form at a later date. The bill might just then reflect the proposed amendments that were previously withdrawn.

This might just be the better news for a change. Let’s see.

Legal Aid Reforms Postponed

Sat, 03 Dec 2011 20:28:26 +0000

Legal Aid Reforms Postponed:

Is there light at the end of this dark tunnel for those of us who still believe in access to justice?

Why Ken Clarke's Justice Bill is fatally flawed

Wed, 22 Jun 2011 15:46:58 +0100

Why Ken Clarke's Justice Bill is fatally flawed:

An article in the New Statesman by Law Society President, Linda Lee.

In the article, Linda Lee argues that the new bill will:

Lead to more crime, according to the government’s own Impact Assessment
Cost taxpayers more than it saves in knock-on effects for society
Block access to justice for all

Sound off for Justice

Tue, 07 Jun 2011 16:22:21 +0100

Sound off for Justice:

Join the Sound off for Justice campaign and sign their letter to David Cameron for him to intervene in the proposed cuts to Legal Aid

Expert's fees being hammered?

Tue, 07 Jun 2011 16:15:00 +0100

In these days of budgetary pecuniary and threats of more cuts, the LSC appears to being resorting to reductions to expert’s fees, even if they were paid years ago and even if they they have been approved by the court by employing seemingly unpublished (except in a link buried on their website) guidelines.

Chair of Resolution’s Legal Aid Committee, Dave Emmerson, has written the following letter to Legal Aid Lawyers on the Resolution website:

Dear Legal Aid Lawyers,

A number of you have reported that claims for experts’ fees are routinely being disallowed or reduced on assessment by the Legal Services Commission. This has happened even where the Court has approved the expense as reasonable.

The LSC’s change of policy is causing real problems, particularly if an expert was paid a couple of years ago and the solicitor may not be able to recover any shortfall from the expert.

It appears that the LSC is applying the rates from an internal guideline document, although these have not been published by the LSC. You can download the guidance here.

The Association of Lawyers for Children has drafted a letter of instruction for experts to ensure that solicitors do not bear the liability for any shortfall. The LSC has seen the letter and has stated: ‘The LSC is content with the letter in so far as it reflects the policies, procedures and contract terms of the LSC.’ The ALC is happy for Resolution members to use the precedent letter, for which we are very grateful. You can download it here.

The current position is very unsatisfactory as members are not receiving payment in full and are having to appeal. I have raised the issue with the LSC’s Head of Contracting and correspondence is ongoing. I will keep you informed of developments.

Dave Emmerson,
Chair, Legal Aid Committee

Costs Appeals - LSC wrong again?

Tue, 07 Jun 2011 16:08:00 +0100

In an article published in Resolution’s “e-News”, Murray Heining, Chair of the Association of Costs Lawyers Legal Aid Committee, has reported that the LSC appear to be using out of date standard letters in relation to the time limits and procedure for Costs Appeals.

The correct procedure is to appeal to an Independent Costs Assessor within 28 days, which can be extended for good reason. It can be found at paragraphs 8.48 – 8.66 in the Unified Contract Specification.

A High Court ruling published today may mean that the Ministry of Justice’s proposed cuts to legal aid are unlawful.

Wed, 18 May 2011 10:42:01 +0100

A High Court ruling published today may mean that the Ministry of Justice’s proposed cuts to legal aid are unlawful.

Family Fixed Fees back on the Horizon

Wed, 02 Mar 2011 17:13:09 +0000

The Ministry of Justice have started a four week consultation with the provider representative bodies in respect of a Funding Order intended to implement Phase 2 of the Family Fee schemes. The consultation will close on 18 March with an estimated date at present for the new schemes to be implemented on 2 May 2011.

Consultation letter HERE

Law Society - Defending Legal Aid Campaign

Mon, 03 Jan 2011 11:10:41 +0000

The Law Society is running a series of free roadshows to update practitioners on the government’s Green Paper proposals for civil legal aid:

Cardiff – 17 January
London – 26 January
Brighton – 3 February
Manchester – 19 January
Newcastle – 27 January
Wakefield – 8 February
Nottingham – 24 January
Plymouth – 1 February
Cambridge – 9 February
Birmingham – 25 January
Bristol – 2 February

Places are likely to be limited so book early at:

http://services.lawsociety.org.uk/events/

Get involved with the Law Society’s campaign at: www.lawsociety.org.uk/defendinglegalaid

A campaigner briefing pack is available to advise you on how to brief your MP and get coverage in your local press

Word version

PDF version

Proposed Court Closures

Wed, 15 Dec 2010 09:54:00 +0000

The Coalition have finalised the list of Magistrates’ and County Courts to be closed as part of their spending cut programme. Certain courts, such as Barnsley, Bury, Llangelli, City of London and Skipton that were due for the chop in the initial consultation have been given a reprieve, but a further 93 Magistrates’ and 49 County Court have not been so lucky.

Justice Minister Jonathan Djanogly stressed that 85% the general public could still be at their nearest court within an hour using public transport as opposed to 90% at the moment.

With the proposed cuts to the Legal Aid budget, the term “Access to Justice” coined by Lord Wolf less than 15 years ago is beginning to ring hollow. Without stooping to much to melodrama, when money is more important than justice, we need to have a long hard look at the the society we are becoming.

The full list of court closures is as follows:

North West

Magistrates’ courts:
Northwich Magistrates’ Court, Southport Magistrates’ Court, Knowsley Magistrates’ Court, Whitehaven Magistrates’ Court, Penrith Magistrates’ Court, Rawtenstall Magistrates’ Court, Salford Magistrates’ Court, Rochdale Magistrates’ Court.
County courts;
Northwich County Court, Southport County Court, Penrith County Court, Runcorn County Court, Whitehaven County Court, Rawtenstall County Court, Chorley County Court, Salford County Court, Bury County Court.

North East

Magistrates’ courts:
Guisborough Magistrates’ Court, Bishop Auckland Magistrates’ Court
Tynedale Magistrates’ Court, Alnwick Magistrates’ Court, Blaydon Magistrates’ Court, Gosforth Magistrates’ Court, Houghton Le Spring Magistrates’ Court, Goole Magistrates’ Court, Skipton Magistrates’ Court, Selby Magistrates’ Court, Batley And Dewsbury Magistrates’ Court, Keighley Magistrates’ Court Sitting At The Bingley Court House, Pontefract Magistrates’ Court.

County courts:
Bishop Auckland County Court, Consett County Court, Barnsley County Court, Goole County Court, Skipton County Court, Pontefract County Court, Keighley County Court, Dewsbury County Court.

Wales:

Magistrates’ courts:
Barry Magistrates’ Court, Aberdare Magistrates’ Court, Llwynypia Magistrates’ Court, Ammanford Magistrates’ Court, Cardigan Magistrates’ Court, Llandovery Magistrates’ Court, Denbigh Magistrates’ Court, Pwllheli Magistrates’ Court, Flint Magistrates’ Court, Chepstow Magistrates’ Court, Abertillery Magistrates’ Court, Abergavenny Magistrates’ Court, Llangefni Magistrates’ Court.

County courts:
Chepstow County Court, Aberdare County Court, Rhyl County Court, Pontypool County Court, Llangefni County Court.

Midlands

Magistrates’ courts:
Halesowen Magistrates’ Court, Sutton Coldfield Magistrates’ Court, West Bromwich Magistrates’ Court, Rugby Magistrates’ Court, Stoke Magistrates’ Court, Tamworth Magistrates’ Court, Ludlow Magistrates’ Court, Market Drayton Magistrates’ Court, Oswestry Magistrates’ Court, Ilkeston Magistrates’ Court, Newark Magistrates’ Court, Worksop Magistrates’ Court, Retford Magistrates’ Court, Coalville Magistrates’ Court, Market Harborough Magistrates’ Court, Melton Mowbray Magistrates’ Court, Spalding Magistrates’ Court, Towcester Magistrates’ Court, Daventry Magistrates’ Court, Rutland Magistrates’ Court, Kettering Magistrates’ Court.

County courts:
Rugby County Court, Stourbridge County Court, Stratford-Upon-Avon County Court, Newark County Court, Worksop County Court, Melton Mowbray County Court, Wellingborough County Court, Grantham County Court, Skegness County Court, Tamworth County Court, Oswestry County Court, Ludlow County Court, Shrewsbury County Court, Evesham County Court, Redditch County Court, Burton-Upon-Trent County Court, Kidderminster County Court.

South West

Magistrates’ courts:
Frome Magistrates’ Court, Bridgwater Magistrates’ Court, Liskeard Magistrates’ Court, Newton Abbot Magistrates’ Court, Camborne Magistrates’ Court, Totnes Magistrates’ Court, Honiton Magistrates’ Court, Penzance Magistrates’ Court, Blandford Forum Magistrates’ Court, Wimborne Magistrates’ Court, Coleford Magistrates’ Court, Cirencester Magistrates’ Court, Stroud Magistrates’ Court, Andover Magistrates’ Court, Alton Magistrates’ Court, Lyndhurst Magistrates’ Court.

County courts:
Cheltenham County Court, Penzance County Court, Trowbridge County Court, Poole County Court.

South East

Magistrates’ courts:
Grays Magistrates’ Court, Harlow Magistrates’ Court, Epping Magistrates’ Court, Ely Magistrates’ Court, Wisbech Magistrates’ Court,
Thetford Magistrates’ Court, Cromer Magistrates’ Court, Swaffham Magistrates’ Court, Sudbury Magistrates’ Court, Ashford Magistrates’ Court, Sittingbourne Magistrates’ Court, Epsom Magistrates’ Court,
Woking Magistrates’ Court, Mid-Sussex Magistrates’ Court, Lewes Magistrates’ Court, Bicester Magistrates’ Court, Hemel Hempstead Magistrates’ Court, Witney Magistrates’ Court, Amersham Magistrates’ Court, Newbury Magistrates’ Court, Didcot Magistrates’ Court.

County courts:
Ashford County Court, Gravesend County Court, Haywards Heath County Court, Epsom County Court, Huntingdon County Court, Harlow County Court, Lowestoft County Court, Newbury County Court, Hitchin County Court.

London

Magistrates’ courts:
Acton Magistrates’ Court, Haringey Magistrates’ Court (Highgate), Harrow Magistrates’ Court, Sutton Magistrates’ Court, Barking Magistrates’ Court, Brentford Magistrates’ Court, Kingston Magistrates’ Court, Woolwich Magistrates’ Court, Balham Youth Court, Waltham Forest Magistrates’ Court, Tower Bridge Magistrates’ Court.

County courts:
Ilford County Court, Mayor’s And City Court.

Proposals for Legal Aid Reform

Tue, 07 Dec 2010 14:17:00 +0000

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

Europe Lifeline for Legal Aid?

Tue, 07 Dec 2010 10:03:00 +0000

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.

High Costs Cases - Don't get caught out!

Thu, 02 Dec 2010 10:25:00 +0000

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.

Events Based High Costs Cases

Fri, 29 Oct 2010 14:57:00 +0100

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.

LSC won't appeal Judicial Review outcome

Thu, 28 Oct 2010 14:40:00 +0100

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.’

Lawyers call for details of £350m legal aid budget cut

Thu, 28 Oct 2010 13:43:00 +0100

Lawyers call for details of £350m legal aid budget cut :

Law Society Gazette Article

Protection for Access to Justice following spending review

Fri, 22 Oct 2010 16:24:00 +0100

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.“

Legal Services Commission - Tender Process "unlawful"

Fri, 15 Oct 2010 14:09:00 +0100

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.’