Often Legal Aid cases can be complicated and of high value, referring to the LAA guidance if a cost is likely to exceed £25,000 it will then become a high-cost case.

Solicitors should keep an eye on their costs especially now that Legal aid certificates have a limitation of £25,000 in family cases.

A situation could arise where in an exceptional case the cost is nearing £20,000 then the Solicitor should really think about having the case registered as high costs and apply to the Legal Aid Agency.

Some important points to always be aware of in high-cost cases.

1). There are 2 teams managing high cost family cases:

  • High Cost Family (HCF) team – deals with all single and KC/2 counsel/advocate cases in private and public law family matters (South Tyneside based)
  • Exceptional and Complex Case Team (ECCT) family section – deals with all prior authority requests for KC/2 counsel cases in private and public law family matters and all Court of Protection cases. ECCT provides all technical oversight and support to HCF (London based)

All family cases requiring KC, or 2 Counsel will require prior authority. These should be submitted as an amendment via CCMS (or APP8 if the case is not being run on CCMS).

2). With two types of case plan –

  • Care Case Fee Schemes (CCFS). Some private law and other child cases which follow a similar fact-finding route and have main hearings over 10 days may qualify for the CCFS scheme (on request and agreed by the Legal Aid Agency)
  • Detailed (fully costed) case plans used in all other family cases plus care cases that the Legal Aid Agency deem to be exceptional
  • The CCFS model simplifies case planning. Costs are determined by reference to events (as defined in the information packs), which have a set value. There are two variations depending on whether the case is being run with single counsel/ solicitor advocate or Two/ Leading Counsel.
  • Upon notifying the LAA that a case is high cost, and you confirm the case will be costed using CCFS you will be asked to upload onto CCMS signed High Cost Contract and Counsel Acceptance Forms (where external advocate/s are to seek their fees outside of the Family Advocacy Scheme). At the same time, you should submit a cost amendment for £32,500. This will allow you to immediately access cash flow. You must ensure that if counsel is used, they are assigned to the case and allocated appropriate funds.
  • If you need to submit an Interim CCFS Form to obtain costs beyond £32,500, submit the CCFS Form without any supporting documentation. Make sure the CCFS Form is fully completed to avoid unnecessary queries. At the conclusion of the case providers should submit their Final CCFS Form accompanied by a checklist of required information, which will help us reach agreement on final costs. It is important that all documentation requested is provided to avoid delay and re-submission. Counsel Acceptance Forms for all external advocates acting outside of FAS should also be uploaded at this final submission stage to allow counsel to present their bills.
  • Upon grant of Prior Authority for KC/2 Counsel you will be asked to upload onto CCMS signed High Cost Contract and Counsel Acceptance Forms (where external advocate/s are to seek their fees outside of the Family Advocacy Scheme) if you accept the case will be costed using CCFS. At the same time, you should submit a cost amendment for £60,000, where the authority covers a fact finding hearing or composite final hearing. Make sure that if counsel is used, they are assigned to the case and allocated appropriate funds.
  • If you need to submit an Interim CCFS Form to obtain costs beyond £60,000, submit the CCFS Form without any supporting documentation. Make sure the CCFS Form is fully completed to avoid unnecessary queries. At the conclusion of the case providers should submit their Final CCFS Form accompanied by a checklist of required information, which will help us reach agreement on final costs. It is important that all documentation requested is provided to avoid delay and re-submission. Counsel Acceptance Forms for all external advocates acting outside of FAS should also be uploaded at this final submission stage to allow counsel to present their bills.

3).     Exceptional Care Cases

All single counsel/ solicitor advocate care cases will be paid via CCFS. If a case is  considered   to be exceptional such that the costs that would be payable under CCFS would not properly remunerate, application may be made at the point of notification that the case is high cost for a detailed case plan to be submitted

4).   High Costs Civil Cases

High cost cases are defined in the Civil Legal Aid (Procedure) Regulations, Regulation 54(3).

In summary these are cases where the Director has reasonable grounds to believe that: –

  1. the actual or likely costs of the case exceed £25,000.
  2. if the case were to proceed to – i. a trial or final hearing; or ii. in the case of appeal proceedings before the Court of Appeal, the conclusion of that appeal, the likely costs would exceed £75,000.
  3. the application relates to a multi-party action or potential multi-party action.
  4. the application relates to an appeal or proposed appeal to the Supreme Court.
  5. it is necessary to decide whether—
  6. the case is of significant wider public interest; or
  7. the substance of the case relates to a breach of Convention rights (within the meaning of the Human Rights Act 1998), in order to determine whether the individual qualifies for civil legal services in accordance with the criteria set out in regulations made under section 12(f) the Act.
  8. the application relates to a case which satisfies the effective administration of justice test; or
  9. the application relates to a community action.

When do contract rates apply:

Whether or not it is done under a contract, work up to the first £25,000 (excluding VAT) of solicitors’ costs, disbursements and counsel’s fees are payable at the prescribed rates set out in Civil Legal Aid (Remuneration) Regulations.

If the first £25,000 of costs includes less than £5,000 in solicitors’ costs, the work done by solicitors up to £5,000 (excluding VAT) will still be payable at prescribed rates. The same rule will apply to counsel, see section 17 below.

These thresholds are set at the point at which the solicitor and counsel are expected to accept part of the financial risk of pursuing the case in cases where ‘party and party’ costs can be expected to be ordered.

How are the stages priced:

The stage price will comprise solicitors’ costs, counsel’s fees, experts’ costs and other disbursements. After the initial “risk assessment stage” in ‘party & party’ costs cases, contract rates will apply.

There will be no separate payments for letters, telephone calls etc. The payment will be for the direct hours spent on the case by fee earners. This is intended to be simpler for both parties. In ‘party & party’ costs cases solicitors and counsel will be paid at published contract rates exceeding the high cost case threshold of 25,000.

If counsel is planned to do any work in a Key Stage, the solicitor must include them in preparing the stage plan and draw their attention to the terms covering payment and the payment rates and obtain their signature to the Counsel’s Acceptance Form. Once the Key Stage is negotiated the solicitor must supply the barrister with a copy of the fully costed Stage or the information in it.

Experts’ reports and other disbursements will be paid under the prescribed rates in the Civil Legal Aid (Remuneration) Regulations 2013.

What are the contract hourly rates:

The contract rates vary depending on whether the case is expected to result in an order for ‘party & party’ costs. In all cases the agency will pay costs up to £25,000 in line with current remuneration rates as set out in the Civil Legal Aid (Remuneration) Regulations. In cases where ‘party and party’ costs can be expected to be ordered, costs in excess of £25,000 will be paid at risk rates.

Risk rates are £70 per hour for solicitors, £50 per hour for junior counsel (barristers in independent practice of less than 10 years call) or lead senior and £90 per hour for senior counsel (barristers in independent practice of 10 years call or more) and King’s Counsel. There will be no enhancement. Travel time when approved will be paid at one quarter of the relevant rate.

In cases where ‘party & party’ costs are not expected to be paid, e.g., cases before Special Immigration Appeals Commission, the Agency will pay in line with current remuneration rates as set out under the Civil Legal Aid (Remuneration) Regulations throughout together with enhancement where applicable. The Agency will also pay at these rates in a successful case which is being appealed or to defend an appeal against an interim order.

How are enhancements assessed on work not covered by contract rates:

The 2018 Standard Civil Contract specification provides a two stage process for enhancement.

The first stage is the threshold test-whether any enhancement will be allowed:

  1. a) the work was done with exceptional competence, skill or expertise.
  2. b) the work was done with exceptional speed; or
  3. c) the case involved exceptional circumstances or complexity.

The second stage has its own criteria, namely the ‘relevant authority’ shall have  regard to:

  1. a) the degree of responsibility accepted by the fee earner.
  2. b) the care, speed and economy with which the case was prepared; and
  3. c) the novelty, weight and complexity of the case.

The percentage above the Prescribed Rate by which fees for work may be enhanced shall not exceed 50%. The exception to this is that in proceedings in the High Court, Court of Appeal, Upper Tribunal or Supreme Court, we may allow an enhancement not exceeding 100% where it is considered that, in comparison with work in other proceedings in those courts which would merit 50% enhancement, the item of work relates to exceptionally complex matters which have been handled with exceptional competence or speed.

The LAA or the Court may have regard to the generality of proceedings to which the relevant Prescribed Rates apply in determining what is exceptional within the meaning of this provision. This is an important provision that is frequently overlooked when determining what is exceptional.

Counsel’s involvement in the contract:

The contract is between the Agency and the firm of solicitors. The solicitors are obliged to draw counsel’s attention to the terms covering payment and our Payment Rates and obtain counsel’s signature to the Counsel Acceptance Form. Once the Key Stage is negotiated the solicitor must supply counsel with a copy of the fully Costed Stage or the information in it.

Counsel’s involvement In planning:

Where Counsel is to be instructed, Counsel will be expected to agree their work and hourly rates set out in the costed Case Plan.

In cases where ‘party & party’ costs are likely to be ordered counsel’s payment will be at ‘risk rates.” In cases where party and party costs are unlikely to be ordered and enhancements to hourly rates sought Counsel will need to justify those rates in the case plan. They will therefore need to consider the case papers and decide whether to take on the case given their own assessment of prospects of success and payment

The use of leading or senior counsel will need to be justified in the light of the nature of the case, the degree of complexity as to fact and law, the amount of quantum and any other particular requirement for specialist expertise.

The use of two counsel will also need to be justified as in the client’s interest. For examples, where there is the need to note evidence in court, or consider significant documentation, or carry out extensive research.

To support counsel in deciding whether to take on the case the first £5,000 of counsel’s fees are “ring-fenced” at the current remuneration rates rather than the reduced ‘risk rates. If there are two counsel instructed the ‘ring-fence’ will be shared £2,500 to each counsel. If it becomes necessary for a new counsel to be instructed for reasons outside the control of the conducting solicitor, the new counsel will obtain a further ‘ring-fence’ of £2,500.

What happens if a case plan and key stage cannot be agreed?

If the Costed Case Plan cannot be agreed with the ECC Team in an “in-scope” case the decision can be appealed to the Independent Funding Adjudicator or SCRP in accordance with the Civil Legal aid (Procedure) Regulations.

The Independent Funding Adjudicator (IFA) can usually consider all aspects of the Plan within the constraints of the standard contract terms and procedures. The IFA will not be able to review the Case Plan on the basis of the solicitors’ failure to provide the information required by the Agency in its required format.

Appeals relating to Case Plans in out-of-scope cases, Exceptional Cases Funding matters or decisions regarding the instruction of 2 counsel/Kings Counsel are dealt with according to the procedures applicable to all appeals in those cases.

Ultimately, the Agency has power to refuse or withdraw funding altogether if the proposals for progressing the litigation do not appear to be satisfactory consistent with the Civil Legal Aid (Merits Criteria) Regulations

5). Once a case is registered as high cost, you can then prepare a High-Cost case plan (this is usually done in stages if not a High-Cost Care Case fee plan). You will be required to prepare Claim 1 for pre-contract costs and submit them with the case plan. Where an HCCP is subject to prescribed hourly rates it is open to claim enhancement where applicable. When prepared in stages you can prepare and submit a Claim 1 for work done under a particular stage and the same is paid relatively quickly.

6). Remember once a matter has concluded it cannot be registered as high costs. Any application made after conclusion will be rejected by the LAA and the Solicitor will be stuck with the default costs limitation.

For assistance or to discuss your High Costs requirements please get in touch – Written by Marinus Clement, Costs Lawyer – Telephone 01480 463499 info@rcostings.co.uk

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