Public funding costs limitations: where now ?

Karen Green considers the question of costs limitations, on the assumption that the Legal Services Commission has the power to impose them.

Under the scheme set up by Administration of Justice Act 1999, the Legal Services Commission (LSC) has assumed the power to impose costs limitations under Funding code: procedures, para C33.3: 'Every certificate shall be subject to a cost limitation specifying the maximum total amount of costs (including any uplift or enhancement but excluding VAT) which may be incurred under the certificate'.Whether or not the Legal Aid Board had power before goes to the Court of Appeal in ex parte Burrows, and is only of direct interest to those who lost costs under the old scheme.Costs limitations and ex parte BurrowsCosts limitations have recently been considered in R v Legal Aid Board ex parte Burrows [2000] NLJ by Stanley Burnton J.

If a costs limitation is refused by the LSC then the consequences - according to the judge - are:l The solicitor may 'withdraw'.

The client 'ceases to be a legally assisted person' and presumably must act in person.

But this sits uneasily with the rule that a solicitor can only withdraw for good reason and upon reasonable notice (Guide to the Professional Conduct of Solicitors, 1999, eighth edition, Chapter 12.12).l If the solicitor continues to act the client remains legally aided, and the solicitor can only recover 'the costs specified in the certificate', no more than the limitation.The LSC does not agree with the judge.

Its view is that a client can instruct a solicitor privately, but only after the appeal procedure has been gone through; though it overlooks how long this takes.Costs limitations and 'spent' certificatesThe term 'spent' for a legal aid certificate is not in the old scheme, or the new.

It has been developed by the Court of Appeal to apply to a certificate which, though not formally discharged, has served its purpose for the proceedings for which it was issued (see Littaur v Steggles Palmer [1986] 1 WLR 287, CA; Turner Plasplugs [1996] 2 All ER 939, CA).A 'spent' certificate is not the same as a certificate where costs limitation has expired.

The former has no force as the part of the proceedings for which it was issued comes to an end; whereas - crucially - a costs limited certificate will still have further proceedings for which the certificate was issued to be dealt with.Costs limitations as history The question must be: is this issue one which is of only historical interest? The confusion of the commission is hinted at earlier, and this must be resolved for the sake of the taxpayer, client and the legal profession.

But the issue goes much further; why have costs limitations, unless you intend to limit costs?It is often said, the commission grants extensions to limitations without difficulty.

How long will that continue? The whole purpose of costs limitations is to enable the commission to curb legal expense at will.

This was made clear, in its evidence to the Divisional Court in ex p Burrows.The new general family help certificates provide an example.

These are to be limited to 1,500 to cover legal representation up to the financial dispute resolution (FDR) appointment.

How long will it be before this becomes the going rate? A limitation may then only be extended in exceptional circumstances - standard fees by the back door.

To cover all the work up to FDR (court fees etc) it would be a very simple ancillary relief case to permit a living out of 1,500.It would be naive to assume that the LSC will not use costs limitations to limit costs.

When it does, all the problems identified earlier will come to the fore for lawyers and their (formerly funded?) clients.

This question is not 'history'.

It is perhaps part of a future whose threshold the legal aid lawyer approaches.Karen Green is a consultant solicitor at London firm Pritchard Joyce & Hinds