1. Costs Guide - Law Centres

©Law Centres Network

1. Costs Guide

April 2013


INTRODUCTION TO THE GUIDE

It is clear that some people have assumed that time recording and a good working knowledge of the Legal Aid Agency (LAA) costs assessment rules is less important since the introduction of the fixed fee scheme in October 2007. However, knowing what you can properly claim for and making sure that you claim it has never been more important. There are a number of contractual Key Performance Indicators (KPI’s) in the 2013 Standard Civil Contract. KPI 1, KPI 2 and KPI 3A & B all relate to costs. KPI’s 1 and 2 monitor your assessment rate versus your claim rate – making it ever more important that what you claim is justifiable under the rules and actually justified and evidenced on the file. KPI 3A measures the fixed fee margin – the difference between the fixed fee and the actual value of the work done on the file at hourly rates. If the average time recoded in a category is more than 20% less than the fixed fee pays for then the KPI is breached. This makes recording all time all the more important. And even if it were not important for the LAA, it is essential for the good operation of the Law Centre for all time to be recorded. If a Law Centre believes, based on the time recorded on the case management system, that a typical Legal Help matter takes about 4 hours to conclude then a typical caseworker could be allocated up to six new matter starts (NMS) to open in a typical 25 hour (1100 hours per year) billable week. However if the actual case-length is 8 hours then this halves the caseworker capacity to open NMS – and could lead to capacity issues and then to underperformance against NMS targets! In addition, you would not be able to properly compare fees received with time recorded (at hourly rates). Further, unless all caseworkers are ‘singing from the same hymn sheet’, it will not be possible to analyse caseworkers’ time recording reports. Contemporaneous Time Recording Working on files in a busy Law Centre can be a demanding task and dealing with what is perceived to be the associated administration (writing attendance notes and time recording) can often be left. Some caseworkers leave it until the end of the day, some until the end of the week and sadly some until the end of the month. The trouble is that the longer a caseworker leaves it to do the time recording the more likely that time spent will be under-recorded. Attendances missed off. Minutes rounded down.


Forgetting to claim just one unit (6 minutes / one phone call / one letter) in every billable hour in the day equates to an annual under claim of 110 hours. That’s worth about £5,500 at Legal Help rates, about £7,200 at Certificated rates and probably over £15,000 at inter partes private rates. If just half a dozen caseworkers are forgetting just 3 units each day then the possible loss to the Law Centre could be as high as £16,500 each year at legal help rates or £21,600 at Certificated rates. What work is assessed by the LAA? All controlled work including that paid by a standard or graduated fee may be assessed by the LAA. Paragraph 4.36 of the Contract Specification states:

“We have the right to Assess all your Claims for Standard Fees and Graduated Fees in accordance with the provisions of the Contract…”

Paragraph 4.37 of the Contract Specification goes on to say:

“We may also take into account the results of any Assessment under Paragraph 4.36 in: (a) assessing your performance under this Contract; and (b) deciding whether your work should be subject to quality assessment or another form of Audit.”

The LAA assesses exceptional high cost cases on a case-by-case basis and it continues to undertake Contract Compliance Audits (CCA’s) and Contract Manager’s Visits (previously known as Financial Stewardship Visits), both of which involve forms of costs assessment. For certificated cases, any bill for proceedings in the County or Higher Courts where the total costs do not exceed £2,500 must be assessed by the Lord Chancellor (through the LAA). Unless special circumstances apply, all other claims must be submitted to the relevant court for assessment. In bills exceeding £2,500, special circumstances may apply where the LAA believe that detailed assessment would be against the interests of the funded client or would increase the amount payable from the fund. In a public law case, where the £2,500 limit is exceeded solely by virtue of the disbursements and/or payments made to counsel under the Family Graduated Fee Scheme, the LAA will consider this as ‘special circumstances’ and the bill should be submitted to the LAA for assessment. How LAA staff approach the assessment of a case Often, the first action that an assessor will take is to have a quick look though the file being assessed. This will give the assessor an idea about how easy or difficult the


assessment task will be. This could have an influence on the overall assessment. For instance, if the file is disorderly and/or the attendance notes are not clearly legible, the task will take longer and will be more difficult. This may put the assessor in a bad mood! The assessor will then take a look at how the file is organised. The most popular method of organising a file is to have a finance sleeve (the CW1 form, Legal Aid forms), a correspondence clip, and a documents bundle. It is an advantage to have the documents and correspondence filed in chronological order. Some organisations split the correspondence clip into separate sections for letters out, letters in and attendance notes. This alternative approach, while legitimate, does make an assessment more difficult and time consuming. The CW1 Form The CW1 form is often the first document which is audited. Too many providers see this form as an example of unnecessary LAA bureaucracy. In fact, it is akin to a contract for payment. Unless the form is completed in full and with regard to the rules specified in the LAA Contract, the contract for payment is null and void. The CW1 form should be seen in the same light as a cheque. A bank would never honour a cheque that was not completed in full, signed and dated. As with a cheque, the use of tipp-ex must be avoided. If an alteration needs to be made, strike through the error and insert the correct information above the error. Please be aware that the rules in relation to obtaining evidence of eligibility are quite tight. Paragraph 3.23 of the Contract Specification states:

Satisfactory evidence, as described in guidance, in support of the prospective Client’s information as to their means must be provided to you before you assess financial eligibility, subject to the provisions of Paragraph 3.24. The evidence (or a copy) must be retained on the file.

However, there are some exceptions covered by paragraphs 3.24 and 3.25 of the Specification:

“3.24 You may assess the prospective Client’s means without the accompanying evidence where:- (a) it is not practicable to obtain it before commencing the Controlled Work; or (b) pre signature telephone advice is given; or (c) exceptionally, the personal circumstances of the Client (such as the Client’s age, mental disability or homelessness) make it impracticable for the evidence to be supplied at any point in the case.


3.25 Unless sub-paragraph (c) above applies, you must require the Client to provide the evidence as soon as practicable. If satisfactory evidence of the Client’s financial eligibility is not subsequently supplied, or if the evidence shows that the Client is not financially eligible, you may claim the work carried out as a Matter Start provided that:- (a) you have acted reasonably in undertaking work before receiving satisfactory evidence of the Client’s means; (b) you have acted reasonably in initially assessing financial eligibility on the information available; (c) you do not claim: (i) any disbursement; or

(ii) if the matter is remunerated at Hourly rates, profit costs beyond those incurred in the period before it is practicable to obtain satisfactory evidence of the Client’s means.

(d) you do not report time incurred beyond the period it was practicable to obtain satisfactory evidence of the Client’s means.”

It is advisable to consider reviewing procedures in relation to obtaining evidence of eligibility before the assessment. For instance, when booking an appointment for a client, it should be checked whether the client understands what evidence of income should be brought to the first appointment. A letter confirming the appointment together with acceptable types of evidence should follow swiftly afterwards. Further, a reminder letter or telephone call or text message should be sent to the client shortly before the appointment. Whilst one of the changes in the new costs guidance allows for payment for completion of the CW1 form during the first appointment, it will usually be more cost effective if you attempt to get the client to complete the form in the waiting area with the assistance of a receptionist or administrative assistant. You couldn’t imagine a Doctor or a Dentist completing the initial registration form with a patient so neither should a caseworker! If a caseworker wishes to start work on a case and rely on one of the exceptions above, then it is advisable to get the client to sign and date a supplementary statement in the evidence of eligibility box on Page 7 of the CW1 form (April 2013 version). A suitable statement could be:

“I agree to provide evidence of my income to my caseworker within 3 days, otherwise I understand that my caseworker may not be able to continue work on my case”.

Rather than being handwritten on every CW1 form, the above sentence could be added to the CW1 form if you have an electronic version or a stamp could be printed. This could then be usefully followed up with a standard sentence in the client care letter that states:


“If you have not already done so, you must provide evidence of your income within the next 2 days in order to continue to qualify for public finding. If you have tried but are struggling to obtain evidence, then please call me/my colleague [INSERT DETAILS AND DELETE AS APPLICABLE].

General Approach to Assessment The LAA assessors’ general approach to assessing files is outlined in the Costs Assessment Guidance which is summarised in the Civil Costs Keycard in Appendix 1 of this Guide. The LAA published a new version of this Guidance in April 2013 for use with the 2013 Standard Civil Contract. When considering claims, many assessors flick through all the attendance notes before carrying out the detailed assessment. This is because assessors like to get a feel for how the caseworker is recording time. It is quite common for an assessor to see many claims which are recorded as ’60 minutes’, ’30 minutes’, ‘120 minutes’, ’45 minutes’, ‘240 minutes‘ or the equivalent time in units. The possible problem here is that an assessor may believe that the caseworker has not been time recording contemporaneously or that excessive ‘rounding’ of claims has occurred. In the eyes of an assessor, this could affect the credibility of the claim. In a recent case: Mastercigars Direct Ltd v Withers LLP, Sup Ct Costs Office (Master Rogers) 25.4.07, the judge criticised the defendant for not, by and large, supporting its contentions with contemporaneous attendance notes. There is a simple way of preventing this problem occurring: by noting the start and end time of an attendance or lengthy preparation item. This will result in claims of say 63 minutes, 28 minutes, 117 minutes and so on (or the equivalent in units). Some caseworkers say that this approach does not allow for interruptions etc but then neither would a non-contemporaneous approach to time recording! If a caseworker is being interrupted frequently then the time of the interruption would need to be noted (computerised time recording packages often feature a ‘pause’ function). However, it is good practice to minimise interruptions as much as possible. This is not a trivial point. Many of the most efficient suppliers minimise interruptions by allowing caseworkers to only make and receive phone calls during certain windows of the day. This is because it always takes some time to ‘catch up’ with where you were before the interruption took place. A similar approach should perhaps be taken with email. Itemise Large Preparation Claims One of the most difficult tasks for assessors is working out where the time was spent on major pieces of work involving more than one task. For example, some caseworkers will record ‘3 hours’ for preparation of a bundle including drafting of a skeleton argument, an index, a chronology and making photocopies. This forces the assessor to estimate how much time was spent on each remunerable activity and how


much time was spent on (potentially) non remunerable photocopying. Using this example, it is better to set out the claim (say) as follows: Skeleton Argument: 106 minutes Selection of Documents: 23 minutes Drafting Index: 12 minutes Drafting Chronology: 27 minutes Photocopying: 16 minutes (not charged) Total 168 minutes

Some caseworkers might see the above approach as bureaucratic but it does significantly minimise the likelihood of costs being reduced on assessment. Legal Research The rules relating to what you can and can’t claim are frequently misunderstood. While the LAA is not keen on caseworkers making claims for general research, it does allow claims for applying the finding of research to the facts of the individual case, particularly where the research relates to a novel, developing or unusual point of law or the impact of new legislation to the particular case. However time for research is claimed the assessor would expect to see evidence of the research on file, e.g. copies of case reports etc. Some caseworkers, in an attempt to save paper, record the address of the web page that they have visited instead of retaining copies on the file. This is poor practice as web links often do not work after a period of time has elapsed. If a paper copy is not kept, an electronic copy must be retained. Brief checks on the current legal position in relation to a client’s case may be justified particularly where you are operating in an area of law which is frequently changing. Lawyers are not expected to be ‘walking law libraries’ (Johnson V Valks). Assessors would not expect to see frequent checks on the current legal position but they would expect to see caseworkers applying the research to the facts of the case. Making Amendments to Key Items e.g. Statements Assessors often reduce claims where it is difficult to understand where the time was spent. For example, caseworkers will often prepare a 2nd, and 3rd draft of a statement following feedback from the client. Many caseworkers will use a pen or pencil to note the amendments and then claim the time spent making the amendments. Some caseworkers deliberately underclaim this time as it is hard to see or evidence where the time went. However, using the word processing tool ‘track changes’ it can very easily be demonstrated exactly how the time was spent. Law Centres may wish to insist that their caseworkers use this tool for two reasons: one because it helps to justify time spent; and two, because it shows what changes were made on which date, which provides an audit trail in case of later investigation.


Telephone Calls and SMS Abortive calls may be claimed (although repeated attempts may be disallowed). Also, ‘waiting’ time is allowed on calls where the caseworker is placed on hold for a period of time greater than 6 minutes. If you send a client an SMS text message then it can be claimed as short telephone call or as an attendance paid at the hourly rate for the time reasonably incurred, under the same principles applying to telephone calls. Letters and Emails You cannot typically claim for letters in however you can properly claim, as an attendance, the time spent considering non-standard incoming letters and their effect on your clients case. For example, a letter in which contains an offer of settlement. This consideration should be recorded in an attendance note. Short and non-complex letters out should be claimed as 1 unit and charged at the letter out rate, as set out in the relevant part of the Remuneration Regulations. However complex letters can be claimed instead as an attendance, representing the time taken to draft that letter. The LAA’s costs guidance states:

For a claim for a non-routine letter to be allowed the time spent must be justified by the substance of the letter. The length of the letter will not itself be determinative of this. A letter of more than one page may be allowed at only the standard rate where, having regard to all the circumstances, including the substantive content of the letter, it was not reasonable for more than 6 minutes to be spent on its preparation. That may particularly be the case where the substance of the letter consists mostly of quotation from another document. Conversely, it may be reasonable to claim more than one unit for a single page letter or less; a concise letter may well take longer to prepare than a verbose letter with the same substantive content, and is likely to be more effective for the client. The letter must not be charged both as a routine letter and also as a time charge.

Travel Time Travel time should be reasonable and where in doubt, assessors would usually allow an average amount of time which it would be reasonable to expect the caseworker to take to travel between the two places concerned.

Normally, where a five hour round trip is required, it would be more appropriate to instruct an agent who is able to attend within a one hour round trip.

Where it would have been reasonable for the client to have instructed a nearer supplier (in relation to Para 6.61 of the Specification), in respect of all travel time and


expenses or agents fees, no extra costs are payable that arise from the caseworker being based in a location distant from the client. This will need to be determined on the facts of any particular claim.

Usually, funded clients will be expected to attend the Law Centre’s offices. In circumstances, where this is impossible, reasonable travel time and disbursements may be reimbursed.

The earlier tip about noting time started and time finished applies equally when justifying significant travel times. So, if a caseworker is travelling from say London to Liverpool, an attendance note to justify the outward leg of a long journey could look something like this: Time Left: 06.15 Arrived London Euston: 06.55 Left Euston: 07.20 Arrived Liverpool Lime St: 09.50 Arrived Liverpool Home Office: 10.30 On long journeys, a caseworker may wish to consider travelling the night beforehand. The LAA are content to pay for hotel accommodation at reasonable rates as the combined cost of the hotel and the off-peak train fare is often lower than the price of a peak rate ticket. In any case, if a case is timed to start early in the morning, the caseworker will have no choice other than to stay in a hotel. The Costs Assessment Guidance and our Key Card in Appendix One details accommodation price limits. File reviews The rule in relation to general claims for file review remains the same i.e. general claims for file review are not claimable unless there are specific circumstances justifying the claim. While they remain mandatory, file reviews carried out for quality assurance purposes are not remunerated under the Standard Contract. Waiting Prior to 2007, the costs guidance stated that any waiting time over an hour would be disallowed in the absence of a brief note explaining the waiting time. The present guidance does not state this requirement, although it is good practice to note reasons for waiting time over one hour. The current guidance is as follows:


• When attending court the earliest a caseworker should usually start claiming waiting time is half an hour before the time the case is due to be called. This principle should be applied to other events such as conferences to ensure time is not reduced.

• When attendance time is claimed at court, there must be evidence in the file

that the attendance advanced the case. • Time spent during lunch or lunchtime adjournments should not be claimed as

waiting time. Photocopying Routine copying is not allowable as it is deemed to be an overhead of the Law Centre. However, where the amount of necessary copying is more than 500 pages then this may be claimed at the lowest obtainable commercial photocopying rate. For example, if, in order to move the case forward, a caseworker needed to copy three bundles of 200 pages and the lowest obtainable local copying rate was 10p per page, then the claim would be for £60 plus VAT (600 pages @10P). Please note that the rate of 10p is used as an example in order to keep the maths simple. It is not an approved LAA rate. The approved rate is simply the lowest local obtainable rate. If in doubt, keep copies of three quotes on the case file. Form Completion Please note that time may now be allowed for the completion of some forms:

• Where the CW1 form is signed during the course of an interview, and it is confirmed that the client is eligible, a claim for time from the beginning of the interview may be made.

• A claim of 30 minutes is allowed for completion of CLR forms in immigration

and/or licensed work certificates.

• A claim can be made for completion of CIV Claim1 and CIV Claim2 forms (at usually 12 – 18 minutes).

• In Escape Fee cases, the time spent in preparing EC-Claim1 form may in

principle be claimed (but not in order to solely push the claim into exceptional territory).

• Work for completion of applications for licensed work is claimed under the

certificate.


• Work done in relation to POA’s, and increases to upper financial limits are remunerable (usually lower than 30 minutes).

• Where the client is vulnerable and has no relatives, friends or other support, a

claim can be made for completion of means forms.

• Completion of forms on behalf of the client is remunerable where their content is such that legal assistance is justified.

Experts’ reports Previously the LAA was willing to pay the reasonable market rate for experts’ fees (and this still applies to cases opened before 3rd October 2011). For such cases it remains a matter of good practice and to reduce the likelihood of costs being reduced or disallowed the market rate should be claimed. Where the rate is high, you should obtain alternative quotes evidenced in the file. However for all cases opened on or after 1 April 2013 there are prescribed fixed fees and maximum rates payable to experts in Schedule 5 of the Remuneration Regulations. Unless there are exceptional circumstances, the LAA will never pay more than the rates set out in the Regulations. The LAA has issued a guidance document on remuneration of expert witnesses which can be accessed from the legal id section of the MoJ’s website: http://www.justice.gov.uk/downloads/legal-aid/funding-code/guidance-on-remuneration-of-expert-witnesses_-April-2013.pdf Law Centres MUST ensure that any experts they instruct on cases opened on or after 1 April 2013 are instructed on the basis of the new fees and rates as, if the Law Centre agrees to pay them more than the maximum set out in the Remunerations Regulations then, the Law Centre will likely remain contractually bound to pay the experts but will be unable to claim the full amount from the LAA. This is likely to be a particular issue with GPs and others who do not rely on preparing experts’ reports as a core part of their business and may be unwilling to provide them at the reduced rates. Congestion charge The London Congestion Charge may only be claimed where it is incurred exclusively in relation to a matter.

Controlled Work claims When you submit your claims for Controlled Work, you should ensure that you are not accidentally triggering a second claim for another standard fee in the same case and in

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categories such as Immigration/Asylum that you are claiming the correct level of fee for the work done. You must make a claim for payment for a Controlled Work Matter within 6 months of its conclusion. Matters reported late can result in a Contract notice being issued. To avoid disallowance of your claim at a later stage, make sure you have a fully and accurately completed CW1 on the file together with satisfactory evidence of means. Escape Fee Case (previously known as exceptional case) claims (EFC)

It is important not to lose out on an opportunity to increase your funding by submitting an EFC where you are eligible to make such a claim.

Cases which were not an EFC at the point at which you submitted your original claim may turn into one if the client returns and you do further work that takes you over the threshold in circumstances where you are not allowed to open a new matter start.

The 2013 Standard Civil Contract Specification paragraph 3.38 states:

‘Where a matter has been closed under paragraph 3.36 and claimed for but further work is necessary and a separate Matter Start is not justified:

(a) the work already undertaken and the further work should be taken into account in determining whether the matter is an Escape Fee Case that escapes from the Standard Fee or Graduated Fee provisions. If we agree to pay the matter as an Escape Fee case, we will take into account any payments already made by way of the Standard Fee or Graduated Fee; (b) you may claim further disbursements as part of the matter where appropriate; (c) where the matter has already been paid as an Escape Fee Case, the further work is payable on an Hourly rate basis, subject to Assessment; and (d) unless the matter is accepted as an Escape Fee Case, the further work carried out will be included in any calculation of average costs per matter.’

The above makes it clear that there may be situations where you have made an EFC and the client then returns again wanting further advice in circumstances where a separate Matter Start is not justified. In cases like this, the further work is payable at hourly rates, subject to assessment. Certificated/Licensed Work Maximising the money you make from certificated work relies on a combination of understanding and correctly applying the relevant rules so you neither lose money


(see, for example, the section on limitations below) nor fail to take advantage of available money (see, for example, the section on payments on account below), good record keeping (so you can justify billing at a level that reflects the work done) and efficient case management (so there’s no delay in processing cases through the various stages of the billing, assessment and claiming). There is a tendency amongst some solicitors to lose interest in a case once the legal work is finished. This needs to be resisted if your Law Centre is to survive financially. ‘Not for profit’ does not equate to being above the need for a regular, reliable income! Sitting on a file and failing or delaying to claim the costs’ belonging to the Law Centre poses an unacceptable risk to the Law Centre. For many Law Centres the reality is that there is more money sitting in their filing cabinets (WIP) than there is in their bank accounts. It is essential, especially in the context of certificated work, to unlock that money as soon as possible. Limitations on scope and costs A helpful way to think about a legal aid Funding Certificate is to think of it like an insurance policy. If what you want to do is not covered in the policy (certificate) you are not going to get paid. The funding certificate and any amendments are conclusive as to what work you are authorised to do. All certificates contain a scope and costs limitation, so it is essential that the work you do remains within the relevant limitations otherwise you will lose potential income for the Law Centre. So, for example, if a certificate is limited to obtaining Counsel’s opinion, you cannot be paid for work done outside this limitation, either by the LAA, the funded client or anyone else on the client’s behalf. (There are limited exceptions set out in Littaur v. Steggles Palmer [1986] 1 WLR 287.) A costs limitation is binding on the assessment by the court or the LAA. Irrespective of the sum of costs on the assessment certificate, the legal aid fund’s liability does not exceed the final costs limitation imposed. This does not prevent a successful client from recovering costs from the paying party in excess of this limit. When the certificate arrives you need to check that the wording is correct and in accordance with the needs of the funded client. Otherwise you risk your client’s protection as to costs and in addition Counsel’s costs, expert’s fees, the costs of a successful opposing party as well as your own costs may be disallowed in all or in part. It is critical that the caseworker monitors total costs under the certificate to ensure that they stay within the costs limitation imposed. If the certificate specifies the forum for proceedings then that forum must be used. If you issue in a different court then no costs relating to the issue or conduct of the proceedings will be paid.


In general, if the total of counsel’s fees and your costs exceed the costs limitation, counsel will be paid in full and you will bear the shortfall. For further details see paragraphs 11.9 – 11.13 of the LAA’s Costs Assessment Guidance. http://www.justice.gov.uk/downloads/legal-aid/funding-code/costs-assessment-guidance-2013-standard-contract.pdf Section 13 of the same document deals with Counsel’s fees generally. Expert’s fees and other disbursements are solely a matter between the expert or other service provider and the Law Centre. Even if the total amount due to you is reduced as a result of the costs limitation, the expert or other service provider will be able to recover such fees as have been contractually agreed between you. Applying for an Amendment You must get an amendment if you wish to act outside any limitation. There are circumstances where you may be able to get a retrospective amendment, but making such a request many months later or on preparation of the bill reduces your chances of success. For further details on when to apply for an amendment see paragraphs 11.17 – 11.19 of the LAA’s Costs Assessment Guidance. Taking over a case from another provider When you take over a certificated case from another provider you need to:

• Consider the costs actually incurred to date. (It is good practice for the outgoing provider to provide the incoming provider with this information.)

• Apply for an increase in the costs limitation, where necessary. • Decide whether the cost benefit aspect of the Funding Code criteria continues

to be satisfied. Claiming for work carried out post discharge of the certificate You cannot get paid for any work carried out after the date of discharge of the certificate, except for:

• Lodging and serving the appropriate notice of revocation or discharge of the certificate.

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• Any work reasonably done pending the dismissal of the appeal against discharge or revocation in order to protect the interests of the client. This must relate to the proceedings rather than the appeal itself.

• If the appeal is successful, the discharge or revocation may be rescinded and therefore work done in the intervening period will be remunerated as if the discharge/revocation never happened. If the appeal is unsuccessful the discharge/revocation period cannot generally be paid for and only the work done in relation to the exceptions above will be allowed.

• Writing closing letters to the client and other interested parties. • Preparing and checking the bill of costs. • Detailed assessment proceedings. • Completing forms CIV Claim1 and CIV Claim2. • Correcting a mistake on the certificate.

Payments on Account This system offers you an opportunity to help your cash flow by applying for a payment on account of:

• any disbursements incurred, or about to be incurred, or • your profit costs (subject to any relevant category specific rules).

Although it is common practice to claim for disbursements, it seems there is some reticence about claiming payments on account of profit costs. In order to unlock the value of Work in Progress (the money in the filing cabinets) and improve your Law Centre’s cash flow position, it is essential that you apply for a first payment on account of your profit costs three months after the issue of the certificate. In most firms of solicitors doing legal aid work, this is done routinely and the upfront income is an important contribution to the firm’s sustainability. Applications are made by completing and submitting CIV POA1. This can now be done via eForms, the LAA’s online system for submitting claim forms electronically. For further details, please see http://www.justice.gov.uk/legal-aid/submit-claim/eforms You can then claim payments on account at each subsequent six monthly interval – and these payments on account trigger points should be carefully diarised. Another option is to apply for payments on account on relevant quarter days – say 1st January, 1st April, 1st July and 1st October. When you open a new certificated matter you allocate it to the first quarter day after three months and then, as each payment is claimed, to the next appropriate quarter day (no more than twice per year). This allows the process to be properly managed and for resources to be properly allocated. You should appoint someone to manage this process to ensure that:

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• You do not make more than two applications in any 12 month period. • Your cumulative payments on account for profit costs under each certificate do

not exceed 75% of the amount of your incurred profit costs, calculated at the date of each application for the payment on account.

• You do not have to repay any payment on account you receive. A payment on account may be repayable when:

• three years have elapsed since the date of issue of the certificate; • three months have elapsed since the case ended; • the LAA has requested information about the case and you have failed to

provide it within 14 days; • the disbursement(s) for which you applied for a payment on account have not

been incurred within one month of receipt of the payment on account. (If the amount incurred turns out to be less than the payment on account, only the excess is repayable).

If you can show good reason why the LAA should not seek repayment, then they should not do so. A payment on account will not be made if this would cause any maximum payment on account limit specified in your Contract schedule to be exceeded. Payments on account are set off against any payment due to you following the final assessment of your costs. Managing the billing, assessment and claiming process If you are managing this process yourself (as opposed, for example, to having an in-house costs person who manages it) you must diarise each next step in the process in the same way as for legal casework and action it promptly. By doing so you should keep the process on the move and ensure that any money due comes in promptly. Billing Once you have completed the legal work, obtained the final order including any order as to costs and written the closing letter, you can prepare the file to go to the costs draftsman. Costs Draftsmen Costs draftsmen prepare the bill of costs in a form which conforms to the rules, regulations and conventions about how bills are presented. A good costs draftsman will be up to date with these rules and the precedents created by decisions in other


cases and ensure that your bill conforms to proper practice and maximises what you get paid for the legal work you have properly carried out. Where there is any dispute about costs, a costs draftsman can attend the detailed assessment hearing as an advocate for the merits of the bill, putting forward arguments as to why the bill should not be reduced. The court then makes an order for payment of the amount of costs it assesses as being due. There are appeal procedures for any party who is dissatisfied with the court's decision. A costs draftsman prepares a bill for assessment either by the relevant court where the costs are above £2,500 or by the LAA where they are less than this or where no proceedings have been issued. They also draw up bills where part or all of your costs are payable by another party. Inter partes costs are always assessed by the court (unless assessment is unnecessary because they are agreed). You can find a costs draftsman by searching http://www.costslawyer.co.uk/?q=find. Alternatively you could ask some local firms of solicitors who they use and approach them. Some firms of solicitors employ costs draftsmen in-house but many are self employed. You may want to consider employing a costs draftsman, perhaps sharing their services across several Law Centres. Although the LAA pays the costs draftsman’s fee in cases where it was reasonable to instruct one, you may not get back the amount the costs draftsman actually charges you. They may charge a percentage of the profit costs claimed in the bill, whereas you will only be able to claim the preparation rate for drafting the bill (as set out in the Remuneration Regulations). In the majority of cases that fall within the LAA’s assessment limit, an allowance of 30 - 60 minutes for preparing the bill is considered appropriate. If you want to claim more time you will have to justify the additional time spent with reference to the circumstances of the individual case. It may be reasonable to make greater allowance where the preparation is made more complex by the nature or circumstances of the case. Longer time will, of course, be allowable where the assessable costs exceed £2,500. The allowance for preparation is in addition to the time allowed for checking and signing the bill. The cost of drawing up and checking the bill fall within the costs of the main proceedings and therefore counts towards the statutory charge and the costs to which the client is required to pay by way of contributions. Assessment Assessment, whether done by the court or the LAA, helps protect the public purse by ensuring that unnecessary or excessive costs are not paid by the Legal Aid fund. Where the bill is being paid by someone other than the taxpayer, assessment helps to ensure that their bill is reasonable.

http://www.costslawyer.co.uk/?q=find�


It is worth noting however that, even where the court has assessed a bill, the LAA requires proof of disbursements and may still question items claimed. In effect the LAA double checks the court’s assessments. Time limits Where the court is responsible for assessment you must make a claim for payment from the LAA within three months of receipt of the final assessment certificate from the court.

Where the LAA does the assessment, the claim must be submitted within three months of your right to claim i.e.:

• the final court order for detailed assessment (i.e. taxation) of your CLS funded costs; or

• the later of the date of service of a notice of discontinuance under CPR 38.3 in respect of the entire proceedings to which the Certificate relates; or three months after the date of the dismissal of application to set the notice of discontinuance aside under CPR 38.4; or

• acceptance of an offer to settle or a payment into court under CPR Part 36 in respect of the entire proceedings to which the Certificate relates; or

• if none of these apply, the date of the discharge or revocation of the certificate (or, where relevant, the date that the discharge or revocation has been finally confirmed on appeal).

Late claims If the claim is late then the LAA may reduce or disallow it in cases where the client has a financial interest in the claim because the statutory charge may arise, the client has paid contributions and/or the certificate has been revoked. After the three month claim period the LAA may serve a notice requiring the claim to be submitted within a further two months. If you fail to submit the claim within that period costs may be disallowed up to the value of the client’s financial interest. More generally, persistent submission of late claims may lead to contract sanctions or termination of the Contract. Notifying your client Your client may have a financial interest in your claim (because it may form the basis of the statutory charge that they later have to repay) and because of this they are entitled to make representations about it. Before submitting your claim for assessment, whether by the court or the LAA, you must:

• notify your client that they have a financial interest and explain why; • explain that they have a right to make representations and how to do this;


• provide them with a copy of your bill of costs or claim for costs; and • endorse your bill or claim indicating that you have complied with steps above.

You may want to develop a template letter covering the above issues. General provisions on claiming and assessment

As with Controlled Work, you may only claim for work that has been actually and reasonably done and disbursements actually and reasonably incurred that are supported by appropriate evidence on the file.

Where you claim the same item of costs on more than one case, you must record this fact on each of the relevant files and claims, together with the proportion of time and costs attributed to each matter.

Whether or not your client has a financial interest in the case, you must try where possible to obtain a client’s costs order or costs agreement as you would if acting for a privately paying client and protect the interests of the Legal Aid fund on any detailed assessment of costs payable by another party.

Hourly Rate Enhancements You should claim an enhancement where appropriate. If you instruct a costs draftsman, you may want to discuss this with them by reference to a particular case and they will be able to advise on this. You can only apply for an enhancement in cases where the prescribed rates in the Remuneration Regulations apply. When assessing costs, the LAA or the court may allow fees at more than the prescribed rate where it appears, taking into account all the relevant circumstances, that:

• the work was done with exceptional competence, skill or expertise; This may cover work where the caseworker demonstrates unusually detailed knowledge relevant to the case or skilfully pursues an unusual or difficult legal argument. It may also include unusual skill in identifying and marshalling evidence in pursuing or defending a case and/or identifying a particularly effective tactic on behalf of the client. The case may have been carried out in a way that meant it required less time than would have been expected of a notional reasonable caseworker, or the client may have received a better result than might usually have been expected. Another example of unusual skill may be taking instructions and providing effective representation for a client who is a child, seriously mentally ill or otherwise very vulnerable.


• the work was done with exceptional speed; or

Enhancement may arise under this provision where the caseworker has proactively pursued a case, for example in obtaining with unusual speed re-housing, community care support, receipt of welfare benefits, an injunction, release from mental health detention or other resolution of the client’s problem. It may also be justified if the caseworker carries out substantial work at short notice because of urgent deadlines, such as proposed deportation or dispersal or injunction hearing where the client is a defendant.

• the case involved exceptional circumstances or complexity.

Complexity may relate to legal issues, questions of expert evidence or other evidential issues, for instance seeking or challenging witness evidence in possession proceedings based on allegations of nuisance. It may also take into account difficulty in taking instructions from the client or other witnesses. Alternatively, that may be viewed as falling within “exceptional circumstances”, which may also include the nature of the issues as they affect the client, such as liberty, right to remain in the country, the roof over the client’s head, addressing domestic violence or avoiding destitution. A case requiring substantial out of hours work may be considered to fall under this limb.

The percentage by which fees may be enhanced is decided having regards to:

• the degree of responsibility accepted by the legal advisor; • the care, speed and economy with which the case was prepared; and • the novelty, weight and complexity of the case.

The percentage enhancement cannot exceed 50%. The exception to this is that in proceedings in the High Court, Court of Appeal, Upper Tribunal or House of Lords, it’s possible to get an enhancement not exceeding 100%. You would only get that in cases where your work, compared with work that merits 50% enhancement, is exceptionally complex and has been handled with exceptional competence or speed. NB For cases opened before 3rd October 2011 the maximums were 100% and 200% respectively.

For further details about enhancement of costs see section 12 of the LAA’s Costs Assessment Guidance

http://www.justice.gov.uk/legal-aid/funding

Claims

Details about the forms to use to claim your costs and where to send the claim can be

found at: hhttp://www.justice.gov.uk/legal-aid/submit-claim/controlled-work-claims

All civil certificated claims with a value of £20 or over (including VAT) must be

submitted with a disbursement invoice or receipt.

http://www.justice.gov.uk/legal-aid/funding�

http://www.legalservices.gov.uk/civil/remuneration/7455.asp�


This applies to payment on account requests and claims submitted on the following

forms:

• CLAIM1

• CLAIM1A

• CLAIM2 (when disbursement is to be assessed by LAA)

• CLAIM5 or CLAIM 5A

Where no disbursement voucher is available, e.g. in respect of mileage or court fees,

your request should be accompanied by a file note or ledger entry. This needs to show

full details of the disbursement claimed.

Pursuing the Opponent for costs

There is obvious advantage in pursuing your client’s opponent for costs as, if you

manage to recover costs from them, they would be bound to pay them at the

prevailing market rate (probably £150-£250 per hour) rather than at the relevant

prescribed rate (closer to £65 per hour) that you can claim from the LAA. However

often pursuing the opponent is likely to incur more costs.

Under the LAA Standard Contract your principal obligation is, where possible, to get a

costs order against the losing opponent and to get an order for assessment of costs.

However the right to enforce the costs order actually belongs to the LAA and you

should not take steps to enforce the costs order without specific authority from the

LAA - as there are additional costs which may be involved.

Obviously if you seek payment from the opponent and they pay up immediately, or

perhaps with a little chasing /badgering, then that's fine. If the opponent doesn't pay

up immediately then you should claim costs directly from the LAA - but will, of course,

only get them paid at prescribed rates rather than at other side / commercial rates

(and, of course, your client might find that they have a statutory charge for the LAA

costs if they recovered or preserved property). If however you think that there is a

good chance of recovering costs from the opponent and that you can justify the costs

of doing so then it is worth seeking authority from the LAA to do so.

There is no time limit that you have to wait for before claiming costs from the LAA,

indeed once you have a costs order you don't have to actively pursue the opponent

for costs and can immediately claim your costs at prescribed rates from the LAA.

You most certainly should not incur any costs in seeking to enforce the costs order

without the LAA's authority. If the other side does pay the costs and you are making


no claim for costs from the LAA then you should tick the appropriate box on the CIV

APP11 application for discharge form and this will trigger the LAA’s recoupment of any

payments on account made on that case.

If you recover some costs from the other side but are still claiming the legal aid only

costs from the LAA then they tick the correct box on the CIV CLAIM2 form - which will,

again, trigger recoupment of the payments on account once received by the LAA.


APPENDIX ONE – CIVIL COSTS KEYCARD

ACTIVITY TIME ALLOWED

Costs Assessment

Guidance v April 2013

SOURCE PARAGRAPH

ALL CONTRACT WORK

General Approach to Assessment

Items not appearing in the bill or claim form will not be paid. 1.5

Work claimed must be supported by appropriate evidence on the file.

1.7

The assessor is not to take into account hindsight.

1.8

Time Spent

Assessors will consider whether a reasonably competent caseworker would have taken that time to perform the work claimed.

1.12

Administrative Work

Not generally remunerable.

2.1

Legal Research

Legal Research is not usually allowable BUT:

Time spent in researching a novel, developing, or unusual point of law or the impact of new legislation to the particular case may be allowed. An assessment of the effect of the law on the individual circumstances

of the case should be noted.

2.5

Lawyers are not expected to be ‘walking law libraries’ (Johnson V Valks).

It may be reasonable to claim time for checking on the application of established law or procedural rules to the individual circumstances of

the case.

2.6

Recorded & Unrecorded Time

Any attendance over 4 units should contain some detail. Without detail

or supporting evidence, claims may be reduced to 4 units.

1.26

Reasonable time may be allowed for time spent dictating (or typing) an

attendance note where it is reasonably lengthy and detailed, and relates to an attendance or notes used in the preparation of the case.

The Guidance suggests that this would be 6-12 minutes per page.

1.28

2.16



Costs Assessment


SOURCE PARAGRAPH

Reviewing Files

Perusal of files should generally be linked to a specific action.

If it has been some considerable time (usually a month) since any action has been taken on the file, then it may be reasonable for that

caseworker to claim some time refreshing his or her mind as to the salient facts.

Even within a period of one month, it may be justifiable to claim a short period (e.g. one to two units) reviewing the file before taking a

particular action. Usually, time incurred transferring a file from one caseworker to

another within the same supplier is not allowable. However, where the conducting caseworker is unavailable through circumstances outside of

the caseworker’s control and it is not reasonable to wait for that caseworker to become available, reasonable time should be allowed for

the new caseworker to review the file. Examples would include a hearing when the conducting caseworker was unavailable (through no

fault of his/her own) or urgent instructions taken from the client.

2.39

2.40

2.41

Documents

Scanning is not remunerable, but the selection of documents to be

scanned is.

2.10

As a very rough guide, it takes approximately 2 minutes per A4 page to

peruse the most simple prepared document. Documents of greater complexity may take longer.

2.12

In relation to drafting documents, 6 - 12 minutes per page is the

guideline for a straightforward document but more complex documents will take longer.

2.16

Selection of documents for the master bundle and drafting the index is

casework and remunerable. The making up or copying of any additional bundles is not caseworker time. However, where the bundles are above average size, it will be

reasonable to check that the copies of have been properly collated and reproduced.

2.17

Letters are either paid at the routine rate, the preparation rate or are

deemed administrative and not paid.

2.18

‘Multiple’ letters and letters confirming appointments may be

disallowed. Letters correcting earlier errors are not remunerable.

2.19



Costs Assessment


SOURCE PARAGRAPH

Letters Out

Covering letters are allowed.

2.19(c)

To qualify as a non-routine item, the time spent must be justified by the

substance of the letter. Where time reasonably spent exceeds six minutes, then preparation time may be claimed instead.

2.20

For letters using standard paragraphs, the amount allowed will depend

upon the contents inserted into the standard letter.

2.21

Letters In

Routine letters received are allowable in family cases/matters but not

in other civil proceedings. Non-routine letters received are remunerable at hourly rates for time

reasonably spent for all types of work.

2.23

Faxes/Emails Where sent instead of a letter, then they may be allowed as a letter.

2.29

Texts

Text messages may be claimed as short telephone calls or attendances at hourly rates

2.31

Telephone Calls

Administrative calls & calls that arise from the oversight of the

caseworker may not be allowable.

2.25 (a) & (b)

The first abortive call is allowable. Repeated attempts to the same

number will require justification regarding the urgency and importance of the call.

2.25 (c)

Messages left are remunerable.

2.25 (c)

Any calls over six minutes may be claimed as a timed attendance.

2.26

Short periods of time ‘on hold’ of up to 6 minutes may be incorporated

as part of the non-routine call. The waiting rate may be claimed for longer periods on hold.

2.27

More than one caseworker

If preparation work has been divided between more than one

caseworker because of the complexity of the case or because of the volume of papers, then it may be reasonable to allow attendance of

more than one caseworker on a client.

2.36



Costs Assessment


SOURCE PARAGRAPH

In unusual circumstances, the caseworker may claim for an attendance

with another caseworker working in the same category of law. Examples could include:

• where the case has reasonably been shared between more than one caseworker;

• where a novel or developing point of law arises; or • where a difficult or unusual point from a different area of that

category of law arises unexpectedly.

2.37

Where an issue arises in a different category of law, attendances and written communications with a caseworker in that category will be

allowable.

2.38

Waiting

Usually, a caseworker may claim up to 30 minutes waiting time before a case is timed to start. However, for longer journeys, it may not be practicable to ensure arrival within that period.

2.53

Waiting cannot be claimed during the lunchtime adjournment but

necessary attendances with the client or counsel may.

2.54

Use of Solicitor Agents

Where instructed, their costs form part of the conducting supplier’s

profit costs.

2.49

Travel Time by the

Caseworker

Travel times (and expenses) are based upon the journey from the office

rather than home unless the journey from home is shorter. When assessing claims, assessors will consider whether the work could have been done in a less expensive way e.g. instructing a local lawyer

agent.

2.42

2.43

Long journeys made by caseworkers may be reasonable where:

• court applications that are not straight forward; • there is a conference with counsel;

• the caseworker is interviewing a witness; • justified because of the specialised nature of the case; or

• there is a lack of suitably qualified agents in the area. Where travel time is reduced by an assessor on the basis that a local

agent should have been used, a notional allowance should be made for time that would have been spent briefing the agents & considering any

reports or correspondence.

2.44

2.45



Costs Assessment


SOURCE PARAGRAPH

Generally, clients should instruct local suppliers but no reduction in

travel time or expenses will be made where the supplier is instructed because the office is based within 10 miles of the relevant court or

tribunal. Further, no reduction will be made where the client confirms that they have made attempts to instruct local suppliers.

2.46

Travel to the Funded Client

Travel out to the client is remunerable where the caseworker has to travel to the client e.g. client has been detained or is house bound.

Reasons for the travel must be recorded on the file.

2.47

Sign Language Interpretation

These costs are reimbursed by the LAA but must be calculated and

notified to the LAA separately.

3.6

Caseworker’s Travelling Expenses

Mileage is payable at the rate of £0.45 per mile.

3.12

The use of taxis may be reasonable where this reduces travelling time or where heavy bundles have to be transported.

3.13

Travelling expenses incurred by suppliers within a 10 mile radius of the

court are not allowable. However, travel expenses may be allowable where local public transport is known to be poor. This does not prevent

claims being made for use of taxi’s where justified.

3.14

(See also Para. 4.16 PD to Rule

43.4 of The Civil Procedure

Rules)

Travel expenses exceeding £20 require a receipt or an explanation why it is not available on the file.

3.16

Travel/overnight expenses

Where an overnight stay is justified, an overnight allowance is payable of £111.25 in London, Birmingham, Manchester, Leeds, Liverpool and

Newcastle-Upon-Tyne City Centres and £81.25 elsewhere.

3.18

Where payment is evidenced, the congestion charge is claimable as a

disbursement where incurred as a result of work carried out on a case.

3.19



Costs Assessment


SOURCE PARAGRAPH

Photocopying

Photocopying is allowable where the documents are unusually

numerous. As rule of thumb, 500 pages will generally be considered to be exceptional but a lower figure may be argued to be exceptional in the particular circumstances of the case. Irrespective of whether the

copying is sent to an agency or carried out in-house, the lowest commercial rate obtainable should be claimed as a disbursement.

3.37

Where other parties request copies, such parties may be asked to

provide payment as no claim from the fund will be allowed.

3.38

Form Completion

Where the CW1 form is signed during the course of an interview, and it

is confirmed that the client is eligible, a claim for time from the beginning of the interview may be made.

2.59

A claim of 30 minutes is allowed for completion of CLR forms in

immigration and/or licensed work certificates. Work for completion of applications for licensed work is claimed under

the certificate. Work done in relation to amendments to certificates, claims for POA’s, and increases to upper financial limits are remunerable (usually lower

than 30 minutes).

2.60

2.60

2.60

A claim can be made for completion of Claim1 and Claim2 forms (usually 12 – 18 minutes) and POA1 forms (usually 6 minutes).

2.61

In exceptional circumstances, where the client is vulnerable and has no relatives, friends or other support, a claim may be made for completion

of means forms.

2.62

Completion of forms on behalf of the client is remunerable where their

content is such that legal assistance is justified.

2.63

Where cases cross the escape fee threshold and escape the standard fee, the time spent in preparing EC-Claim1 form may in principle be

claimed.

7.2



Costs Assessment


SOURCE PARAGRAPH

HOUSING WORK ONLY:

Section 202

CLR preparation rates may be claimed for any housing cases that

involve legal help provided in relation to a review under section 202 of the Housing Act 1996 or help provided to a defendant to a possession

claim in the County Court.

8.1

Homelessness

The CLR preparation rate only applies where the matter involves

assistance in pursuing a section 202 review

8.2

LICENSED WORK ONLY:

Pre-Certificate

Work done prior to the certificate is not generally allowable. However, work done following a devolved, telephone or faxed application grant of funding but before the issue of the certificate is within scope of the

certificate

10.15

As certificates are issued with effect from a particular date, allowable work carried out before the exercise of devolved powers but on the

same date is within scope.

10.15

For calculating whether suppliers are within any financial limit, include

the estimated uplift when calculating profit costs.

11.5

Client’s travelling expenses

There is no payment for a client’s travelling expenses unless they are

required to attend court as a witness of fact.

3.22

The supplier may fund a client’s travelling expenses to see an expert

where the client cannot afford the expense and the destination is not local.

3.23

Requests for prior authority are recommended in licensed cases but require a breakdown of the client’s weekly income & expenditure.

3.25

Any person attending court called to give evidence is entitled to recover

expenses as to loss of income, travel, hotel expenses, & subsistence.

3.28



Costs Assessment


SOURCE PARAGRAPH

Exceeded costs

Limitation

Where limitations have been exceeded, counsel must generally be paid in full.

11.10

Enhancements

The Contract Specification allows for an enhancement of up to 50%. In

civil non-family proceedings only, the rates may be increased potentially by up to 100% in a High Court, Court of Appeal or House of

Lords case.

12.2

Enhancements will be considered according to two stages: Firstly, according to whether the work:

(a) Was done with exceptional competence, skill or expertise;

(b) With exceptional dispatch;

(c) Involved exceptional circumstances or complexity.

12.4

Secondly, that regard shall be given to:

(a) The degree of responsibility accepted by the caseworker;

(b) The care, speed and economy with which the case was prepared;

(c) The novelty, weight and complexity of the case.

12.5

Costs Draftsman’s

fee

A law costs draftsman’s fee is payable where it is reasonable to instruct

a draftsman to prepare the bill.

15.8

Under the Standard Contract bill preparation time is in principle

claimable in this way for both family and civil non- family cases in all forums. However for cases covered by Standard or Graduated Fees, bill

preparation time cannot be claimed in addition to the Standard or Graduated fee and will only be payable for cases which escape that fee.

15.10

In the majority of cases, 30 to 60 minutes preparation is considered appropriate (in addition to time allowed for checking and signing the

bill)

15.12

1. Costs Guide - Law Centres

Documents

Transcript of 1. Costs Guide - Law Centres