CRIMINAL DECISION 46Magistrates' court standard fees -- Newton hearingsThe unsuccessful judicial review of this decision is reported in Gazette [1996] 30 October, 25.CRIMINAL DECISION 54Review and supervision of franchised files-- Decision: Time properly spent by a franchised firm reviewing and supervising files to meet the franchising criteria is time properly chargeable.

Guidance is being issued by the LAB to their assessing officers in the following terms:1 This decision was reached following certification of a point of principle by an area committee in a criminal matter involving a franchised firm of solicitors.2 The solicitors acted in two criminal matters.

In submitting their claim for costs they included a claim for time spent reviewing and supervising the file in accordance with the criteria.3 The board's review and supervising criteria are set out in paras 3.49 and 3.50 of the franchising specification.4 In this case the solicitors operated a system of file review and supervision at three points in a criminal case: after the first hearing, at mode of trial and disposal (summary trial or committal).5 The Costs Appeals Committee recognised that in a criminal case file review and supervision would ordinarily be undertaken at points coinciding with the requirement to review progress on the case anyway.6 The decision confirms that time properly spent by franchised firms in the review and supervision of criminal files to meet the franchised criteria is chargeable.

It is of course subject to the normal principles of assessment.

This will include consideration as to whether it was reasonable to undertake the supervision/review at that point and whether the time spent was reasonable.7 The area office should note that para 3.50 of the franchising specification does not require every case file to be reviewed.

Similarly, whilst there must be a supervisor for franchised files, the extent of supervision will vary depending on eg the experience of the case worker.8 Where costs for supervision and review are claimed the area office may wish to seek an explanation of why the nature of the case made the supervisor's participation necessary and of the occasions, duration and circumstances of the participation.9 This is a point of principle decided on a criminal matter and does not affect other types of assessment.10 Area offices should seek further guidance from head office where necessary.-- Commentary: It is arguable that a request for an explana tion under para 8 will be inappropriate where supervision is clearly required in order to meet franchise requirements.CRIMINAL DECISION 59Enhancement rates for legal aid orders granted on or after 1 October 1994-- Decision: In determining the percentage due under para 3 of pt 1 of sched 1 to the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 regard should be had to the Lord Chancellor's directions for determining officers.-- Commentary: The directions for determining officers in the Crown Court gave effect to the Lord Chancellor's assurance in 1994 that the changes to enhanced rate provisions were not intended to be cut costs for the operation of the 100% or 200% caps.

The LAB are required by s.5(5) of the Legal Aid Act 1988 to have regard to such guidance as the Lord Chancellor may direct.

This decision arises from the failure of some area offices and committees to apply that guidance.

The effect is that the Backhouse calculation must first be undertaken and the enhancement then calculated to produce the same composite figure, subject to the statutory maxima.

The board have issued the following guidelines to their assessing officers:1 When determining a claim for enhancement under para 3 of pt 1 to sched 1 of the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 the assessing officer must first consider whether the case is 'exceptional' and justifies enhancement.

The regulations provide that it may be appropriate to allow an enhancement for any item or class of work where, taking into account all the circumstances of the case, it can be established that:(a) the work was done with exceptional competence, skill or expertise;(b) the work was done with exceptional dispatch; or(c) the case involved exceptional circumstances or complexity.2 The proper test of 'exceptional' within the phrase 'exceptional circumstances' is the actual meaning of 'exceptional', ie, 'out of the ordinary' (R v Legal Aid Board ex.p R.M.

Broudie & Co [1994] 138 SJ 94).3 If the assessing officer considers that an enhancement should be applied to any item of work he must apply what he considers to be the appropriate percentage uplift to the prescribed legal aid rate applicable.

In determining the percentage, regard should be paid to:(a) the degree of responsibility accepted by the solicitor and his staff(b) the weight and complexity of the case; and(c) the care, speed and economy with which it was prepared.4 The percentage by which the prescribed rate may be enhanced shall not exceed 100% except for where the proceedings relate to serious or complex fraud where the percentage may not exceed 200%.

Such cases are, for example, those conducted by the Serious Fraud Office or those transferred under section 4 of the Criminal Justice Act 1987.5 Having considered whether any item of work should be enhanced, the assessing officer must consider what hourly rate and percentage uplift would have been applied if the legal aid order had been made before 1 October 1994 when the Backhouse principle applied.

Once that composite figure is known (using the hourly broad average direct cost rate plus uplift) the assessing officer should ensure that the relevant percentage applied in the assessment of that item of work provides a figure not lower than the composite rate, subject always to the maxima provided by the regulations.6 If an assessing officer decides that enhancement should be applied to a case he may apply the percentage to particular items of work.

If an enhancement is allowed for one item of work it do es not have to be allowed for other items.

It will depend on the circumstances of the case.

Enhancement may be applied to any item of work including travel and waiting.7 If an assessing officer receives a claim for enhancement but decides not to allow an enhancement the solicitor should be notified of the reasons why the case was not considered to fall within the criteria set out in the Regulations.