Family fortunes...

and misfortunes

District Judge Chris Lethem reports on the recent changes to family law costs and the practical implications of themNew remuneration rules came into force on 2 April 2001 for solicitors and 1 May 2001 for counsel in relation to publicly funded family work.The sugar coating for solicitors is a 15% increase where the work is conducted by a member of the Solicitors Family Law Association's (SFLA) specialist panels or the Law Society's Children Act panel.Counsel must charge incremental fees according to five specified tiers of work.Mark-up departs, function arrivesThe Legal Aid in Family Proceedings (Remuneration) (Amendment) Regulations 2001 (SI 01/830) govern the work of solicitors conducted after 2 April 2001, irrespective of when the certificate was granted.The confusion caused by a mark-up is gone, with this element now included in the basic fee.

There has also been a modest rise in the rates of remuneration.

The new regime for counsel is to be found in the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001 (SI 01/1077).It relates to all work carried out under certificates granted on or after 1 May 2001 where the length of the hearing does not exceed 10 days.

Counsel will now conduct their work by reference to one of five functions - F1 to F5.

F1 is pre-issue work (other than conferences) and any work that does not fall within the other four functions.

F2 relates to injunctions and enforcement other than main hearing work.F3 relates to interim hearings including a financial dispute resolution appointment (FDR) for which an additional fee is allowed (60 for a junior).

F4 are the fees for conferences and includes the advice.

F5 are the fees for the preparation, advice, drafting and advocacy.There are also various uplifts.

An additional 10% hearing fee payment is available for settlement on the first day of the hearing where listed for two days plus.

Special issue payments provide for supplements where counsel is opposed by a litigant in person; there are more than two parties or more than one child represented; there is a foreign element; and where there is more than one expert.Special preparation fees relate to exceptionally complex issues of law and fact and care cases in which the hearing dates span more than four months, where counsel has had to carry out substantially in excess of the normal preparation.Providing the hearing extends beyond 5pm but finishes that day, there is an additional 50% for counsel for the hearing fee.

The bliss of a big bundleThere are fee increases claimable where the court bundle (or the brief, if no bundle) exceeds 700 pages.

This heralds an entirely novel approach.

Many of counsels' fees are set according to the size of the bundle.

Different supplements are payable for bundles between 176 and 350 pages and 351 to 700 pages.

District judges will be astute to weed out cases where the bundle is overloaded with excess documents.

However, the size of some forms E are already reaching alarming proportions (happy the counsel whose client has 10 bank accounts).Some judges may take the view that the documents annexed to the form E should be excluded from the bundle especially where many months have expired since the forms E were filed.Similarly, judges will also become concerned at the length of speeches when the clock is creeping towards 5pm.

One can foresee that judges might seek to counter this by timetabling hearings so as to limit the length of speeches.For some solicitors the costs regulations governing their work offer scope for forum shopping.

Those who operate on the fringe of the south-eastern circuit will be well advised to hop across the boundary into the south-east for their family work and enjoy the higher rates which apply if the relevant work was carried out in the Divorce Registry or another court on that circuit.

That's according to the new criterion which is different in respect to care work where higher rates apply only if the solicitor's office is situated within the Legal Service Commission's London region.However, a successful application for a transfer out of the south-east will put paid to the higher rate for work carried out after the transfer.

The writer looks forward to the ingenuity of solicitors' arguments for not transferring a case that does not mention the fees structure.Daft to draft?There is scope for re-deploying work so as to obtain the maximum advantage from the fees.

In many cases it is counsel who draft the documents for the final hearing.These may include a chronology, statement of issues, the party's open positions in ancillary relief and a schedule of assets and liabilities.

They are an F5 function and rolled up into that fee.

Solicitors, on the other hand, are still paid an hourly rate for the preparation of documents reasonably done in connection with the proceedings.Accordingly, it makes sense for the burden of preparatory work to be transferred to the solicitor.

Counsel might be well advised to indicate to solicitors at an early stage that they expect these items to be included in the brief, at least in draft form.AdvocacyA further change in the rates of remuneration creates a dilemma for solicitors.

Historically, they could expect to enjoy a higher rate of return if they conducted their own advocacy.The net result was that many family practitioners would conduct their own trials and FDR hearings.

The new regulations abolish any distinction between the junior solicitor sitting in his or her office attending on clients, drafting and carrying out other preparation and the more experienced practitioner conducting advocacy (unless the SFLA or panel supplements apply).Allowing for the low waiting allowance for solicitors (32.45 per hour in all county courts), there is a marked disincentive for solicitors to appear in court.

The logic would seem to suggest that this work will gravitate to the Bar.Equally, the rates of remuneration for the Bar (a primary fee for a junior of 325 for the first day of the final ancillary relief hearing) is hardly likely to keep counsel in the style to which they would like to become accustomed.The consequence may be that publicly funded work will be the preserve of less experienced practitioners at the Bar, while more experienced barristers will be reluctant to take on such work.One can appreciate that this will be a benefit to the younger Bar, conferring experience and a steady flow of work to them.But there are concerns that the private litigant in family proceedings, fighting a funded litigant, will have an advantage conferred on them.The 15% upliftFinally, I return to the uplift conferred on accredited specialists.

This uplift of 15% will attach to any family work carried out by an SLFA accredited practitioner but the position is anomalous.The Children Act specialist will only get the uplift if the certificate includes proceedings relating to children (SI 01/830 regulation 4 (5)).Thus it would seem that if the certificate covers a residence application and ancillary relief then all the work will attract the uplift.

However, the purely ancillary relief certificate will not attract the uplift.Accordingly, it would seem that it is in the best interests of practitioners to obtain SFLA accreditation as soon as possible.Because the uplift does not extend to work by others carried out under the supervision of the accredited solicitor, it makes sense for the accredited solicitor to be freed up from functions that do not count as preparation for cases.The regulations create an entirely new charging structure and ought to cause all practitioners to rethink the distribution of work between the less qualified, the specialist and counsel.District Judge Chris Lethem sits at Tunbridge Wells County Court