Very expensive cases/special case workVery expensive casesVery expensive cases:scopeVery expensive casesVery high cost casesVery expensive cases:scopeVery expensive casesVery expensive cases:scopeVery expensive casesVery expensive cases:scopeVery expensive casesVery expensive cases:financial eligibilityVery expensive casesVery expensive cases:merits testVery expensive casesVery expensive cases:merits testVery expensive casesVery expensive cases:formsVery expensive casesVery expensive casesVery expensive cases:fundingVery expensive casesVery expensive cases:fundingVery expensive casesVery expensive cases:fundingVery expensive casesVery expensive cases:fundingVery expensive casesVery expensive cases:fundingVery expensive casesVery expensive cases:fundingVery expensive cases
5.211Civil high cost cases are called ‘special case work’ under LASPO and are governed under regulation 54 of the Civil Legal Aid (Procedure) Regulations 2012.
Scope
5.212High cost civil cases are dealt with by two teams at the LAA – family and civil non-family cases. In civil cases the LAA will agree individual case contracts for cases. In family, an individual case contract can be agreed or you can opt to be paid under the ‘events model’ or ‘Care Case Fee Scheme’, which is a form of graduated/fixed fee, dependent on the number of hearing days and other events (as outlined in guidance). The benefit of the CCFS is that it avoids multiple revisions to detailed case plans, which is popular with practitioners and is often (but not always) considered preferable to an individually agreed case plan. From 1 October 2015 all single advocate care cases will be paid under CCFS unless you can show you would be paid at least 30 per cent more by claiming hourly rates with a case plan.
5.213High cost cases fall into five types:
•individual very high-cost cases: where costs are expected to exceed £25,000, such as Children Act 1989, clinical negligence and judicial review cases;
•cases which might exceed £75,000 if they proceeded to contested trial, final hearing or the conclusion of any appeal stage before the Court of Appeal or Supreme Court;
•multi-party actions (MPAs): these range from 1,000-claimant actions to 10-claimant actions;
•exceptional funding cases: when funding is approved outside LASPO provisions;
•‘community action’ cases in relation to individuals who belong to an identifiable geographic community the members of which have a common interest in the proceedings.
5.214The LAA can treat more than one set of proceedings or certificates as a single case when deciding whether the cost thresholds are reached, for example in public law Children Act proceedings involving numerous parties.
5.215Cases can be referred to the High Cost Case Team by the LAA’s processing office at any stage if it appears that they may meet the criteria.
Financial eligibility
5.216See chapter 3. See also ‘Funding from the client’s point of view’, para 5.106 above. The LAA has a limited power to waive eligibility rules in relation to MPAs.
1Civil Legal Aid (Procedure) Regulations 2012 reg 53.Merits test
5.217Only three types of case are automatically entitled to funding:
•special Children Act proceedings;
•proceedings in which the client’s life or liberty are at risk;
•judicial review proceedings in which:
•the court has given permission for the case to continue, and
•the case:
•has a significant wider interest; or
•is of overwhelming interest to the client; or
•raises significant human rights issues.
5.218Cases concerning multi party actions, appeals to the Supreme Court, breaches of Convention rights (within the meaning of the Human Rights Act 1998 or a Community Action, may be subject to special controls.
2Civil Legal Aid (Procedure) Regulations 2012 reg 58.Forms
5.219You need to submit:
•a statement of what the case is about;
•a statement of objectives – what is in issue and what is likely to be secured;
•a case analysis – this must include:
•issues of law – favourable and unfavourable, setting out how any obstacles will be overcome;
•issues of fact – favourable and unfavourable, assessing the evidence supporting each;
•expert evidence required – and why;
•costs in issue – eg amount of claim for damages – special rules for clinical negligence see below;
•key events and resources required – likely costs of solicitors, counsel, experts and disbursements;
•risk analysis – and how to deal with risks identified;
•statement of prospects of success within the terms of the funding code;
•an assessment – addressing each relevant element of the merits criteria and stating how each is satisfied;
•case theory – a short statement (five sentences or less) explaining why the client will win the case;
•broadly costed overall case plan, including:
•when counsel and experts will be instructed;
•when the case management conference will be held;
•when the trial will take place;
•forecast of cumulative costs – at key events and appropriate intervals and at 31 March each year;
•fully costed plan for the next stage of the case, showing an overall price for the stage – also setting out costs of all elements of work to be performed and costs to be incurred;
•breakdown of costs to date;
•details of any costs-sharing agreements;
•details of the person managing the case, and of the team (if any) who will be doing the work;
•names of person managing the case and the team members;
•what they will be doing;
•evidence of their suitability;
•evidence of the firm’s suitability to handle the work to its conclusion.
Funding
5.222Funding is agreed as set out in the case plan. There is very little flexibility to move costs from one heading to another once they are agreed. It can also be difficult to get amendments to the case plan accepted.
5.223For a case where inter partes costs are expected to be paid if successful, funding is provided on a risk-sharing basis. If it settles, recovery is at full inter partes rates; but if unsuccessful, the LAA will pay at specified hourly rates with no mark-up (normally £90.00 for senior counsel, £70.00 per hour for solicitors and £50.00 for junior counsel).
5.224There are specific rates of payment for other contracted cases, which vary depending on the type of case, prospects of success, and any exceptional circumstances.
5.225Claims can be made, at the hourly rates applying, for costs to date at the start of the contract, and at the end of each stage. If a stage lasts longer than six months, a claim for costs can be made every six months. These are applications for payment on account and made direct to the high costs cases team.
5.226At the end of the case, claims can be made in the same way as under an ordinary certificate (see chapter 11), though at the hourly rate agreed in the contract. If costs are recovered from the other side, the LAA is entitled to the recoupment of payments on account. High cost case bills are always assessed by the LAA, not the courts.