Legal aid costs appeals

The following poi nts of principle have been decided by the Legal Aid Boards costs appeals committee.The commentaries on the decisions are prepared by the policy directorate of the Law Society.Practitioners obtaining certificates of points of principle from their legal aid area committee can obtain advice and assistance on the presentation on their written arguments from David Hartley, Policy Directorate, The Law Society, 113 Chancery Lane, London WC2A 1PL/DX 56 London/Chancery Ln.Requests for advice prior to that stage should be directed to the Law Society's practice advice Service at 50/52 Chancery Lane, London WC2A 1SX (on the same DX number).CLA 1 (Amended):MEANING OF THE LIMITATION 'LIMITED TO OBTAINING COUNSEL'S OPINION'-- Decision: A certificate bearing a limitation containing the words 'Limited to obtaining counsel's opinion' covers the obtaining of one opinion only (which may follow a conference).

Work undertaken by a solicitor to clarify a genuine ambiguity in the opinion itself could, however, be allowed.

If at the time of receipt of counsels written opinion, counsel is not in a position to advise on the settling of proceedings no further work can be carried out until the limitation is removed or amended to allow either a further written opinion from counsel or further work by the solicitor.-- Commentary: This decision confirms and expands the Legal Aid Board's Notes for Guidance 9-02 1996/97 Handbook.CLA 5 (Amended):RATES TO BE ALLOWED ON ASSESSMENTS UNDER REGULATION 105 CIVIL LEGAL AID (GENERAL) REGULATIONS 1989-- Decision: Costs assessed under Regulation 105 Civil Legal Aid (General) Regulations 1989 should be assessed to ensure that the costs allowed are those which would, not should, be allowed on a taxation on the standard basis under rules of court.The rates which would be allowed are those which are being allowed in the court where the litigation was or was most likely to have been issued and conducted.

The expense rate chargeable will be the broad average direct cost of doing the work as allowed by the local taxing officer or District Judge.

Regard may be had to the local law society survey on expense rates to determine the broad average direct cost.

In areas where the survey expresses an hourly rate by one single composite figure this is only an average figure.

The seniority and expertise required by the particular case will be relevant to the hourly rate allowed to reflect the true broad average direct cost of the case.-- Commentary: This decision applies the requirements of the Regulations.

Practitioners may wish to ensure that their area office has a copy of any and the most recent local Law Society Expense of Time survey in respect of the area where the litigation was conducted.

If the litigation was conducted in the High Court or was most likely to have been issued and conducted there, the rates applicable would be those allowed in the High Court.CLA 8 (Amended):PRESCRIBED RATES: ENHANCEMENT MEMBERSHIP OF THE LAW SOCIETY'S CHILDREN PANEL-- Decision: Membership of the Law Society's Children Panel is itself an exceptional circumstance under Regulation 3(4)(c)(iii) of the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 which gives a discretion to the assessing officer to allow a larger amount than that specified where it appears to him to be reasonable to do so in any particular part of the bill of costs in question.As a general rule, where a solicitor appeared as an advocate, this is not an exceptional circumstance.

Where, however a Children Panel solicitor appeared as an advocate in care proceedings, this will be an exceptional circumstance.

Whether this justifies of itself allowance of a 'larger amount' is a question for the exercise of discretion, in consideration of all the circumstances of the case.

An uplift in hourly rate for panel membership in cases properly lasting more than two days would normally be justified.-- Commentary: This amended decision makes it clear that membership of the Children Panel is itself an exceptional circumstance and enhancement will usually be justified where a Children Panel solicitor conducts a hearing of two or more days in length.

Where the hearing is of less than two days in length or is conducted by a non-Panel solicitor enhancement may still be justified.CLA 9 (Amended):PRESCRIBED RATES: EXCEPTIONAL CIRCUMSTANCES -- MEMBERSHIP OF THE LAW SOCIETY'S CHILDREN PANEL-- Decision: When considering a claim for enhanced rates on the basis of Regulation 3(4)(c)(iii) Legal Aid in Family Proceedings (Remuneration) Regulations 1991 consideration should, when deciding if there are 'any other exceptional circumstances' of the case, be given to whether any or the following exist:(A) Factors which might raise an exceptional circumstance:(i) innate difficulties of communication with the client, for example mental health problems, deaf, speech-impaired, or autistic clients, or clients requiring an interpreter (although attention should first be given as to whether this has been covered by longer than normal hours of attendance being claimed);(ii) a conflict of detailed expert evidence (as opposed to merely contested expert evidence, and/or a proliferation of expert witnesses);(iii) a hearing in excess of two days without counsel;(iv) conflict between the guardian ad litem and the child, where the child instructs his own solicitor.(B) Factors which might but would not necessarily raise exceptional circumstances(i) detailed contested allegations of sexual or serious abuse;(ii) a large number of parties with competing applications;(iii) involvement of children with different needs.The transfer of the case to a care centre or from a care centre to the High Court is indicative of complexity and weight only and are not conclusive of exceptional circumstances.Where exceptional circumstances are said to arise there must be a factor, or combination of factors in the particular case which is exceptional or are unusual in care proceedings.The factors set out above are a non-exhaustive list.

They relate to the circumstances of the case itself and not to claims for enhanced rates based on Regulations 3(4)(c)(i) and (ii) Legal Aid in Family Proceedings (Remuneration) Regulations 1991 which have regard to the manner in which the work was done.Where exceptional circumstances are sought to be established and solicitors seek remuneration on the basis of the exercise of the assessing officer's discretion pursuant to Regulation 3(4)(c) the solicitor must precisely identify the exceptional circumstances and those specific items of work in respect of which enhancement is sought.

[see Re: Children Act 1989 (Taxation of Costs) [1994] 2 FLR 954.]-- Commentary: This amended decision applies the general guidance in the High Court authority also known as London Borough of A v M.

It expands A(i) and adds A(iv) and B(ii) to the factors to be considered when deciding if there are 'any other exceptional circumstances' of the case.Practitioners will note that the list of factors in the decision is non-exhaustive.CLA 21:PRESCRIBED RATES: ENHANCEMENT MEMBERSHIP Of THE LAW SOCIE TY'S MEDICAL NEGLIGENCE PANEL-- Decision: Membership of the Law Society's Medical Negligence Panel is not in itself an exceptional circumstance justifying payment of an enhanced rate under Regulation 5(1)(a) of the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994, but membership of the Panel may be a factor which contributes to a decision that enhanced rates are justified.-- Commentary: The escape clause which the Society secured in the 1994 Regulations was expected to ensure that cases conducted by experienced and competent practitioners where their level of competence and skill were needed would receive enhancements.

That should be justified by exceptional competence, skill or expertise if not exceptional circumstances or complexity.CRIMLA 64:MAGISTRATES COURT STANDARD FEES -- BAIL ACT OFFENCES -- SERIES Of OFFENCES-- Decision: Two or more offences under either section 6(1) or section 6(2) of the Bail Act 1976 may constitute a series of offences, depending on the circumstances of each case and whether there is an evidential or factual nexus between them.-- Commentary: This decision applies the general principles to be considered in assessing whether there is a series of offences to the question of whether or not two or more Bail Act offences are separate cases.

The decision is similar to that in CRIMLA 63 on multiple disqualified driving offences.CRIMLA 65:MAGISTRATES' COURT STANDARD FEES -- SERIOUS OR COMPLEX FRAUD-- Decision: A criminal case may be serious or complex under paragraph 3(5) of Part 1 to Schedule 1 of the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 even if not conducted by the Serious Fraud Office.-- Commentary: See the commentary on decision CRIMLA 60 in the Gazette [1997] 5 March, page 35.LAA 7 (Amended):APPLICATION fOR ADVICE AND ASSISTANCE UNDER THE LEGAL ADVICE AND ASSISTANCE REGULATIONS 1989-- Decision: The combined effect of Regulations 9(1), 9(3), 9(4), and 9(6) of the Legal Advice and Assistance Regulations 1989 is that the making of the application for advice and assistance includes the provision of the financial information, both capital and income, as required by Regulation 9(4).The application must be made in person and the information which is part of that application must be provided at the same time as the completion, including signing and dating, of a form approved by the Board.On attendance on behalf of the client under Regulation 10 of the Legal Advice and Assistance Regulations 1989 the person so authorised should attend to make the application on behalf of a client.The making of that application must include a personal attendance by the person so authorised, the provision of the information required by the regulations and completion of the form approved by the Board.

If the date inserted on the signing of the form is incorrectly recorded or omitted it shall be permissible to provide to the Board satisfactory evidence to show the date on which the form was actually signed.

Extraneous evidence cannot be provided in respect of the mandatory information required by the regulations.-- Commentary: It is mandatory to provide the information required by Regulations 9(4) and 9(6) as to the client's capital and income details.

The last sentence of this decision should be read in conjunction with decision LAA 15 -- see commentary following.LAA 14:ERROR OR MISTAKE IN ASSESSMENT-- Decision: Paragraph 11 of Schedule 2 to the Legal Advice and Assistance Regulations 1989 indicates that if it appears there has been some error or mistak e the solicitor may, but not must, amend the means assessment but is not obliged to do so.If the solicitor decides not to amend he/she must specify when submitting their claim for costs precisely why that decision was made and may have regard in respect of a spouse to whether in all the circumstances of the case it would be inequitable or impractical to do so.-- Commentary: Under the regulations the solicitor is not obliged to amend an original assessment of the disposable income, disposable capital or contribution of the person concerned where he/she later discovers that an error or mistake was made in that assessment even if the person would have been ineligible for green form advice if the error had not been made.

However, the solicitor must give reasons for not amending the assessment when submitting a claim for costs.

Where the error concerns the income or capital of a spouse there may be reasons why it would be inequitable or impractical to amend.

The message is therefore that if solicitors make an error, which they are otherwise unable to amend, they must ensure they give a full and reasoned explanation.LAA 15:INSERTION OF CAPITAL AND INCOME DETAILS ON TO THE GREEN FORM-- Decision: The combined effect of Regulations 9(4) and 9(6) of the Legal Advice and Assistance Regulations 1989 are to make it mandatory for a solicitor to obtain capital and income details from the person applying to be assisted and to furnish that information on the green form.In order to comply with those mandatory requirements, solicitors must ensure that both sections for income and capital details are completed on the green form using words and/or figures as appropriate.

A tick or striking through of the income or capital detail boxes does not furnish information as required by the regulations.-- Commentary: Once the Law Society became aware that this decision was being applied retrospectively by the London Area Office it pressed the Board to agree that the decision would not be applied prior to the profession having notice of the decision, which appeared in the Legal Aid Board's Focus Newsletter in March 1997.It has been agreed that the Board's Area Offices will only apply this decision to all green forms signed on or after 1 April 1997 (see [1997] Gazette 12 March, 4).