POINTS OF PRINCIPLE OF GENERAL IMPORTANCEThe following points of principle have been decided by the Legal Aid Board's costs appeals committee.

The commentary on the decisions is prepared by the policy directorate of the Law Society.CRIMLA 13 (Amended)-- Enhanced rates in criminal and care casesDecision: Where the criteria for paying enhanced rates in criminal proceedings under the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 are met, such claims will be assessed on the basis of broad average direct cost of the work (the A figure) to which is added a percentage uplift (the B figure) to take into account all the relevant circumstances of the case.The A figure will represent the broad average direct cost of undertaking the work.

Factors to be taken into account in identifying this figure may include the rate likely to be allowed in an enhanced rates case by the appropriate Crown Court for the relevant level of fee earner at the time to which the costs claim relates and evidence of the results of surveys of local solicitors' expense rates for the locality in which the solicitor's office is situated.As to the B figure 35% should be considered as a starting point in respect of preparation.

Solicitor advocacy would normally be expected to carry an uplift of 40-60% and attendances with counsel, 20%.In the majority of cases where enhancement is claimed and allowed it will, nonetheless, be usual to pay travel and waiting without enhancement at the prescribed legal aid rate.

Each case must be considered on its merits having regard to all the relevant circumstances of the case.

A claim for travel and waiting at the A figure may be allowed in cases which are out of the ordinary.

Even the, travel and waiting would not be expected to attract an uplift on the A figure.When enhanced rates apply to routine letters written and to telephone calls made or received and they are not timed, the method of assessment is to allow them at one tenth of the hourly rate plus, in appropriate cases, an uplift for preparation.Commentary: This amended decision appears to restrict the cases where enhanced rates apply, in comparison to the previous amendment to CRIMLA 13.

That decision held that where enhanced rates applied they applied to all letters written and telephone calls made or received.

This decision is more subjective in how enhancement should be applied.

It also inserts a test of appropriateness to uplift for preparation that was previously absent.CRIMLA 69-- Magistrates' Courts standard fees Bail Act offences -- fee categoryDecision: Where a defendant is charged with offences under both sections 6(1) and 6(2) of the Bail Act 1976, and has legal aid for both matters, and pleads guilty to one, and pleads not guilty to the other, the whole matter should be treated as a category 2 mixed plea for standard fee purposes.Commentary: This confirms that Bail Act cases should be treated in the same way as any other case where alternative charges are put and a mixed plea results.CRIMLA 70-- Magistrates' courts standard fees: deferred sentenceDecision: Where sentence is deferred, two separate standard fee claims may be submitted.

The first claim should be made on deferment of sentence.

A subsequent claim may be made in category 1 once the final defence hearing has taken place.If there are multiple cases where the sentence is deferred and the original claim(s) for costs were assessed as consisting of more than one case for standard fee purposes the later claims for the work relating to the deferred sentence hearing should be assessed at the same number of cases.Commentary: This decision clarifies the costs regulations regarding deferment of sentence which state that proceedings arising out of a deferment of sentence including any subsequent sentencing hearing fall into category 1 of standard fees.

It is clear that two separate standard fee claims should be able to be claimed on deferment.LAA17-- Advice and assistance on living willsDecision: It may be reasonable to provide legal advice and assistance in connection with preparing an 'advance directive' where the individual concerned can satisfy the requirement in s 2(2) and (3) of the Legal Aid Act 1988 that particular circumstances have arisen requiring such advice to be given.This requirement might be satisfied if it can be shown that such a directive may be needed, ie, that by virtue of the individual's current medical state there is a real probability of medical treatment being required in the future.Commentary: This point of principle would appear to be an attempt to address the problem of individuals who for example, suffer from degenerative diseases, which might prevent that person from expressing his or her wishes regarding future treatment of their condition.-- Guidance on living wills1.

An advance directive enables a competent person to give instructions about what is to be done if he or she should subsequently lose the capacity to decide or to communicate.

It may cover any matter on which the individual has decided views, but most commonly arises in decisions about medical treatment, particularly when a person has a serious life-threatening condition.2.

An advance directive may also be referred to as a 'living will', 'treatment refusal' or 'refusal/release'.

It should include an informed authorisation or refusal of specific treatment.

It may not, however, insist on a specific treatment or require medical professionals to act contrary to the law eg, active euthanasia.3.

The costs appeals committee considered that legal advice and assistance in relation to an advance directive can be provided as long as the requirements in s 2(2) and (3) of the Legal Aid Act 1988 are satisfied ie, that particular circumstances have arisen in relation to the person seeking the advice.4.

Particular circumstances will only arise at the point when the individual realises that there is a real possibility of suffering from a future incapacity by virtue of a current condition, eg, extreme age or terminal illness or diagnoses of a degenerative disease, which will prevent that person from expressing his or her wishes.5.

Particular circumstances may also arise where the individual holds a strong religious or moral belief eg, a Jehovah's Witness who wishes to decline a blood transfusion.6.

The crucial point is that the need for legal advice and assistance must stem from the particular circumstances of the individual and these circumstances should already have arisen when legal a dvice is sought.

A person facing a hypothetical risk would not satisfy this test and would therefore not be eligible for advice under the scheme, eg, concern about the possible threat of sudden incapacity or death through a freak accident.7.

A minor illness or recurring minor medical condition would not generally satisfy this test as such circumstances would not normally justify the preparation of an advance directive.

In other words, there must be some relationship between the particular circumstances which have arisen and the need for legal advice and assistance in relation to the advance directive.8.

It is considered that the preparation of an advance directive would be unlikely in all but exceptional cases to take more than one hour in total (including taking instructions/attending on the client).LAA18-- Solicitor agents and the legal aid and assistance schemeDecision: section 32(10) of the Legal Aid Act 1988 authorises the use of solicitor agents for representation only.

A solicitor may not therefore delegate the provision of advice and assistance to a solicitor agent.Commentary: This decision confirms the notes for guidance in the legal aid handbook referring to the House of Lords decision in R v Legal Aid Board ex parte Bruce (1992) which held that a solicitor agent cannot be used under legal advice and assistance either as a disbursement or as an element of profit costs.-- Ex gratia paymentsFollowing a number or recent refusals by the Legal Aid Board to allow applications by solicitors for ex gratia payments, the Law Society offers some advice on how to apply successfully.The following area examples of solicitors failing to take basic steps to ensure that they are covered by legal aid or, being unaware of basic legal aid rules.1.

Solicitors being given a legal order to obtain a judgment summons.

It is ultra vires.2.

Solicitors continuing to act on a certificate notwithstanding that it has been exhausted by the conclusion of the proceedings.3.

Solicitors not reading the limitation on the certificate and so carrying on for a significant period of time without cover.4.

Solicitors launching a second action on the same certificate as the first action thinking that an amendment was sufficient for this purpose.

It is not.5.

Emergency legal aid being granted to represent someone in proceedings when they are only a witness.6.

Solicitors instructing local agents to work for them on a green form.

Agency work is not allowed on a green form.

A second green form should be signed.