Civil Case Management –

December 2013

Disbursement Training

Disbursements

• These are sums paid out by the solicitor in connection with

the conduct of the particular case (as opposed to those

which could benefit any of his cases).

• Each and every disbursement must first have been

reasonable to incur and secondly reasonable in it’s amount.

• Guidance on disbursements can be found in section 3 of the

civil costs assessment manual.

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

Evidence Requirements

• Invoices or receipts must be provided in respect of any

disbursement of £20 or more (inclusive of VAT).

• Where the nature of the disbursement, court fees and

mileage, is such that no invoice or receipt is available, this

should be evidenced by a note on file to this effect.

• The Claim form provides for a schedule of the disbursements

incurred, and these must be cross referenced against the

invoice or receipt received, and retained with the bill on

payment.

Types of Disbursements

• The variety of disbursements that can be incurred is

enormous, however they must have context within the

proceedings.

• They may include:

oBarristers fees.

oExperts Fees.

oCourt Fees.

oTravel Expenses.

oInterpreter Fees

Overheads & Administrative

• Disbursements do not include costs which are considered to

form part of the administrative overheads such:

oPhotocopying in-house*

oCourier fees*

oPostage

oStationary

oFaxes

oScanning

oTyping

oThere are exceptions*

Prior Authority

• You must consider whether the solicitor sought a prior

authority before incurring a disbursement.

• If an authority was sought and granted then the

disbursement should not be disallowed on assessment

(although the cost limits on the certificate can not be

exceeded).

• If no prior authority was sought or if prior authority was

sought and refused the decision is whether it was reasonable

to incur the disbursement.

• Prior authorities to exceed the set rates on certificates

granted after 03/10/2011 are dealt with by our Cardiff office.

Reasonableness

• All disbursements are subject to an assessment of whether

these costs are considered reasonable.

• Factors that will be considered are:

o What is it’s purpose and importance to the case?

o What service is involved and is there a choice of

alternative service providers (if so to what extent)

o Are all the elements of the service justified in the

particular case and at the particular time

o Is the time claimed in undertaking the service reasonable

and proportionate?

o Should the fees be apportioned?

Reasonable in Amount

• Historically there were no prescribed rates for the various

disbursements that might be incurred.

• For certificates granted post 03/10/11 the Legal Aid Reforms,

imposed prescribed rates for some types of disbursements

• These rates are mandatory and disbursements must be

checked to ensure that they have been applied.

• These rates can only be exceeded where a prior authority

has been granted.

• Guidance and rates can be found on the website

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

Civil and Family Expert Rates – Timeline of rates

No codified expert rates

Community Legal Service

(Funding) (Amendment No.2) Order

2011

Introduced codified rates

Civil Legal Aid (Remuneration)

Regulations April 2013

Pre-October 2011

On/after 3 October

2011

On/after 1 April 2013

On/after 2 December

2013

Civil Legal Aid (Remuneration)

Regulations December 2013

New rate for surveyors and removed London differential for some experts

Reduced most expert fees by 20%.

Maximum rates for experts have been in place since October 2011. The case start date

will determine which set of rates applies.

London and Non London Rates

• There are some rate differences between London and Non

London based experts

• London rates are payable when the expert is based within a

London borough

• You can enter their postcode or address in the following link

to determine whether they are based in a London borough

• http://local.direct.gov.uk/LDGRedirect/Start.do?mode=1

• The rate payable is based on the registered office of the

expert

• Where the expert has more than one office the office closest

to the client or provider should be used to determine the rate

No Expert Rate

• Where an expert is not listed the LAA or the court will assess

the rate payable

• In considering the rate at which to fund the expert service the

commission

oMust have regard to the rates set out in section for

other experts, and whether there are experts of a similar

nature

oMay require a number of quotes to assess the

reasonableness of the rate payable

oWhere necessary have access to the experts CV

Other Experts

• No cancellation fee is payable for an expert where the

hearing or appointment was cancelled more than 72 hours in

advance

• Travel time rates capped at £40 per hour.

• The rate payable for travel should never be more than the

hourly rate charged

• Mileage limited to 45p per mile

• No separate payment for administration costs such as typing,

consulting room or courier fees although the telephone calls

may be allowed if they progress the case.

Reasonableness – Time Spent

• There are no set times for expert reports in terms of what is

reasonable

• The factors that might influence the time spent are

oNumber of parties

oChildren and their vulnerability

oMental health problems

oCultural or language factors

• The following benchmarks can be considered when

considering the number of hours. These are not however a

cap on the hours that may be claimed

Nature of time expended Amount of time

Reading per report 5 hours

Assessment per person 5 hours

Report Writing (1 to 3 people) 10 hours

Report Writing (4 or more people) Maximum 20 hours

Meeting with experts (only if specifically requested)

Maximum of 3 hours

Analysing psychological tests Approx 3 hours per adult or 1.5 hours per child

The table below details the number of hours above which it is suggested that prior authority should be sought.

Expert Type One party to be assessed

Two parties to be assessed

Psychologist (including child psychologist)

20 30

Psychiatrist 15 25

Independent social workers

30 40

Paediatrician 15 25

Radiologist 10 -

15

The following range of hours have been granted for prior

authority and can serve as a useful benchmark –

Average Hours granted

Average Hours (1 party)

Average Hours (2 parties)

Psychologist 25 19 32

Child Psychologist

20 30

Psychiatrist 16 10 23

Drug and Alcohol Testing

• There are no hourly rates for drug and alcohol testing

• These tests will normally arise by order of the court and

frequently in residence/contact and care cases

• The court order must be provided and this will specify what

each party should be tested for and should include details

on:

oWhich drugs are being tested for

oLength of time over which testing should arise

oThe type of test

• Administrative support services cannot be paid – this

includes split invoicing fees

DNA testing

• There are codified rates • For certificates applied for between 03/10/11 and 01/12/13 the following applies

• The funding order sets out a rate of £315 for the testing of a

mother, father and child.

• An additional £90 can be claimed for reporting

• If further children are required to be tested a further fee of

£133 can be charged

• If there are a number of alleged fathers each father and

child/children tested would constitute a separate test.

• The rates have been reduced for certificates applied for

on/after 01/12/13

Independent Social Workers

• Independent social workers in family cases are paid at the

Cafcass/Cafcass Cymru rates of £30 p/h outside London and

£33 in London

• This was introduced on 09/05/11 and is confirmed in the

contract

• There is no provision to pay in excess of these amounts in

family cases

• There are no set rates for independent social workers in non

family rates. We should consider if the rate claimed is

justified and if there were any exceptional circumstances.

• Social Work Assessments outside of England and Wales are

out of scope of funding from 09/05/11

Psychotherapists

• There are no codified rates for psychotherapists

• When considering the rate payable reference should be

made to the training and experience of the psychotherapist.

• For example many psychotherapists are trained as

independent social workers and therefore for them the

independent social worker rate of £33/£30 per hour is

considered reasonable

• Checks should be made that:

o The work undertaken is in scope

o That the work does not include any therapy as this is

specifically excluded

Risk Assessments

• Where an expert with a social work qualification is providing

specialist risk assessment services the rate is £63 per hour

• The following factors could point to a risk assessment being

requiredo A court order specifies that it is required ando Work is being done that is over and above that requiring

independent social work expertise. This can be due too A substantiated criminal allegation that is relevant to

the proceedings ando A finding of sexual abuse relevant to the case and

o A report is specifically required to address the risk

Multi Discipline Reports

• Where a multi disciplinary report is required consideration

must be given to the experts who undertake the work

• Each experts rate should be applied to the work they have

undertaken – the same rate should not be applied across the

report

Surveyor Fees

• There are set rates for property valuation. This work can be

claimed at £50 per hour

• Where a surveyor undertaking an investigation and

diagnostic survey of a property in a housing disrepair matter

meets the exceptionality criteria set out in the funding order,

then the following rates should usually apply:

oOutside London: Up to £85 per hour

oIn London:  Up to £115 per hour

oThese rates were codified for certificates issued

on/after 01/04/2013

Solicitor Travel• Travel by a solicitor is claimable based upon time (Profit

Costs) and also as to costs of travel (disbursement)

• Consideration should be given to

oWas there a reasonable need for the journey

oWas the appropriate form of transport used.

oWould it have been reasonable for the client to instruct

a more local provider

• If either aspect is considered inappropriate consideration

should be given to whether this impact upon the other aspect

of the cost.

Travel and Subsistence Rates

Standard Mileage Rate 45 pence per mile

Public Transport Mileage Rate 25 pence per mile

Train Travel Standard fares only

Overnight hotel (London, Birmingham, Manchester, Leeds, Liverpool and Newcastle upon tyne)

£85.25 per night

Overnight hotel (all other areas) £55.25 per night

Overnight (other than hotel) £25

Night subsistence allowance £21 per night

Personal Incidental allowance £5 per night

Funded Client & Witness Travel Costs

• The funded client, or any witness attending court on their

behalf, is entitled to recover their expenses for doing so.

• These may include:

oLoss of income

oTravel expenses

oHotel expenses

oSubsistence.

• These are subject to the principles of reasonableness

and evidence requirements.

Other Client Travel

• The Commission may also be required to pay the funded

client’s travel costs to attend upon experts however the

solicitors will have to show that:

o The client was impecunious, and

o Travelling to the expert was necessary in order to make or

keep the case viable.

Children Act Proceedings

• Residential assessments and any costs of treatment, therapy

or training are out of scope

• This is confirmed in the contract and 1.3 of the funding code

criteria

• This is because the costs of such an assessment should be

borne fully by the local authority involved in the proceedings,

as part of the assessment in the case or the care plan.

• Since April 2009 the costs of or expenses relating to any

activity to promote contact with a child directed by the court

under Section 11A to 11G Children Act 1989 will not be

recoverable under a funding Certificate.

Children Act - Child Assessment

• Where the leave of the court is required for the child to be

examined or assessed, then prior authority will not be given

until that leave has been obtained.

• Prior authorities are not mandatory, however can have a

major impact upon case costs.

Who Pays?

• Parties should use a single expert jointly instructed where

this is appropriate

• Disbursements should be appropriately apportioned between

parties (whether publicly funded or not) where that is

reasonable, with or without the leave of the court.

• Checks should be made to ensure that the Fund does not

bear a disproportionate share of the total expense – See

LSC Manual Volume 1, Part D – 5.6

• Where there are linked certificates checks should be made

that costs are apportioned appropriately.

Where the Fund was to bear an expense, then no element

relating to treatment or therapy can be included.

31

• Where the Fund was to bear an expense, then no element relating to treatment or therapy can be included.

Evidence Requirements

Payment on Account Bill

Disbursement (unless specified below)

•Voucher for any disbursement over £20 (including VAT)•Voucher should contain breakdown of work undertaken and hourly rate

•Voucher for any disbursement over £20 (including VAT)•Voucher should contain breakdown of work undertaken and hourly rate•Schedule of disbursements to be provided

Drug and alcohol testing

•Invoice is required (no requirement for hourly rates)•Check POA matches invoice

•Invoice required with details of work undertaken•Court Order detailing what is to be tested

Court Fees •Voucher or copy of ledger detailing payment

•Voucher or copy of ledger detailing payment

Cost Assessment Guidance

Other Guidance

Requirement for voucher over £20 3.1

What disbursements can be incurred

3.2 Funding code criterion 1.3

Fee earner travel Costs 3.10 – 3.21

Funded client travel costs 3.22 – 3.31

Photocopying 3.36 – 3.38

Experts Fees 3.39 - 3.47 CLS (funding) order 2007Part 14 Payment Annex6.62 Contract Specification

Admin charges and cancellation fees

3.44 4.24 contract specification