The Legal Aid Agency has downgraded a £4.5m fraud trial in a bid to prevent the case being stayed after barristers refused to undertake the work at the reduced pay rates for very high cost cases (VHCCs).
The eight-handed alleged boiler room fraud had been designated a VHCC by the LAA, due to the time estimate and volume of documents. However, after the government introduced a 30% cut to fees paid to solicitors and barristers in VHCCs in December, no advocates could be found to represent the defendants.
Lee Adams, partner at London firm Hughmans, who represents four of the defendants in R v Crawley & Others, had sought an application for the case to be stayed on the basis that the unrepresented defendants would not have a fair trial.
Adams has contacted 17 sets of chambers, but has been unable to find counsel of appropriate skill to represent his clients.
Before the hearing, the head of the LAA’s high-cost crime case management team informed the parties that the LAA had ‘declassified’ the case as a VHCC and downgraded it to a graduated fee matter.
Judge Anthony Leonard, sitting at Southwark Crown Court (pictured), adjourned the matter to enable the solicitors to seek counsel to undertake the case on the alternative fee regime.
Leonard split the case into two trials, the first – with five defendants – is listed for trial in April with a time estimate of two and a half to three months, within the VHCC range. The second is listed for trial in January 2015.
Adams told the Gazette: ‘This is extraordinary. I have never seen anything like it and never known a VHCC to be declassified.’
He explained that, in graduated fee cases, the maximum counsel can be paid is for cases of up to 10,000 pages of evidence. If a case involves a greater volume of documentation, counsel have to apply to the LAA for enhanced payment.
This case, which is the first prosecution to be brought by the Financial Conduct Authority, said Adams, involves 100,000 pages of evidence.
Adams, who has so far been unable to secure counsel, said: ‘I will have to ask counsel to undertake a case of 100,000 pages with no certainty they will be paid for 90,000 of them.’
Nick Brett of London firm Brett Wilson, who represents one of the defendants, said: ‘It’s a slightly odd concept, but an attempt to find a practical solution to deal with a fairly major problem.’
He has sought to contact the barrister who held the brief prior to the fee cuts, but has yet to hear whether they are willing to take the case on the revised basis.
At an earlier hearing, Judge Leonard declined to postpone the trial after being informed that counsel could not be found. On that occasion he warned the defendants that they may have to represent themselves, telling them they should be ready for trial however much it will cost the taxpayer.
The move by the LAA will be seen as an attempt to solve the problem of barristers refusing to undertake VHCC work at the reduced rates, which could jeopardise the prosecutions of many serious offences.
A poll by the Criminal Bar Association revealed that 98% of barristers will decline to carry out the work for the reduced fees.
Barristers and solicitors around the country will stay out of court on Monday morning in protest over the government’s wider plans to cut £220m from the £1.9bn legal aid budget.
The chairman of the Criminal Bar Association, Nigel Lithman QC, questioned the legality of the LAA's decision to change the status of the case. He also queried the propriety of offering the same case to a solicitors' firm as a VHCC and to the bar as a graduated fee case.
Lithman said the CBA will take advice on these matters. He added: 'These cases if done as grad fees will almost certainly pay even less than the new reduced rate VHCCs. Why would anyone do the same demanding work for lower payment just because of an artificial name change?
'These cases may come from members of the bar who have already rejected them. Remember this is being done so the government can introduce new rates by stealth.'
A spokeswoman for the LAA said: 'This case was originally deemed a VHCC as there was to be a single trial likely to last over 60 days - therefore meeting the LAA's criteria for what determines a VHCC. On 23 December, the trial judge determined it should be split into two trials, both less than 60 days in duration. Therefore neither trial meets the LAA's criteria for what constitutes a VHCC. This would mean payment of advocates under the advocates graduated fee scheme basis.'