Payment for advocacy servicesAdvocacy in civil cases:payment for:solicitor, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:counsel, work done byAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:payment on account of counsel’s feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:payment on account of counsel’s feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:payment on account of counsel’s feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:payment on account of counsel’s feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:high cost civil casesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:high cost civil casesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:high cost civil casesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:high cost civil casesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:unpaid feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:unpaid feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:unpaid feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:unpaid feesAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:legal aid only costsAdvocacy in civil cases:payment for:inter partes costsAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:legal aid only costsAdvocacy in civil cases:payment for:inter partes costsAdvocacy in civil cases:payment forAdvocacy in civil casesAdvocacy in civil cases:payment for:legal aid only costsAdvocacy in civil cases:payment for:inter partes costsAdvocacy in civil cases:payment forAdvocacy in civil cases
Work done by a solicitor
15.25Advocacy work, and associated preparation, attendance, travel and waiting, done by a solicitor is payable at the hourly rates set out in the Civil Legal Aid (Remuneration) Regulations 2013. This is true whether the solicitor is employed by your firm or whether they are acting as an independent solicitor-advocate. Their times should be included on your bill along with all other profit costs and will be assessed in the usual way. See chapter 13 for details of the assessment process. The fact that a solicitor has undertaken the advocacy themselves rather than instruct counsel, especially in a complex case, will assist in justifying an enhancement to the hourly rates.
Work done by counsel – cases started prior to 2 December 2013
15.26Barristers’ fees are codified in all cases started on or after 3 October 2011. For cases started after that date, but before 2 December 2013, there are hourly rates applicable in all courts and for three categories of barrister – QCs and senior and junior counsel (respectively, ten years’ call or more and less than ten years’ call). The location of chambers, not the court, determines whether the London or non-London rate should be claimed (only junior counsel in the County Court have separate London and non-London rates).
1Costs Assessment Guidance para 13.9. See Schedule 2 to the Civil Legal Aid (Remuneration) Regulations 2013 for the rates. They apply to barristers in independent practice but not solicitor advocates or barristers employed by solicitor firms, both of which claim at solicitor rates.
15.27There is a discretion for junior counsel in the County Court to be paid at higher rates than those set out in the Remuneration Regulations. The regulations merely say that the LAA can do so if it is ‘reasonable’ to do so. The Costs Assessment Guidance applicable at the time
2This was formerly in Costs Assessment Guidance para 13.12, but has been removed from the current edition, presumably as these provisions are not in force for certificates granted after December 2013. went on to say that the decision lies with the LAA, even if the court has assessed fees at the higher rate, and that factors to be taken into account include:
•the complexity of case – for example, the gravity of the case, points of law or contested evidence;
•novel areas of law – a case requiring unusually specialised know-ledge or skill or that is likely to set a precedent or have a wider impact;
•where an opponent has instructed a QC;
•a case requiring considerable amount of out-of-hours work;
•where a client has mental health problems, learning difficulties, social impairment or language difficulties that may impact on the approach taken;
•where the case involves an unusually large number of parties represented at a contested final hearing;
•where a hearing requires the cross-examination of more than one expert on technical issues, for example in clinical negligence cases;
•a fully contested hearing lasting more than two days.
Work done by counsel – cases started on or after 2 December 2013
15.28For cases started on or after 2 December 2013, payment rates for counsel were reduced, in most cases, to the rates applicable to solicitors doing the same work where the case is in the High Court or below, or in the Upper Tribunal. The location of chambers, not the court, determines whether the London or non-London rate should be claimed (only junior counsel in the County Court have separate London and non-London rates)
3Costs Assessment Guidance para 13.9.. Where chambers has more than one address, the solicitor’s location will be taken into account in determining the applicable rates.
15.29There are separate rates for counsel appearing in the Court of Appeal and Supreme Court, which depend on the level of counsel’s seniority. Those rates also apply to Queen’s Counsel acting as such and appearing in any court (assuming authority for QC has been granted). The rates are set out in Schedule 1 to the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013. There are no prescribed rates for work done in tribunals other than the Upper Tribunal (where in scope or as part of exceptional funding), but in determining the rate paid costs officers should have regard to the prescribed rates.
4Civil Legal Aid (Remuneration) Regulations 2013, reg 7(4) and (4A), as inserted by reg 2(2)(c) and (d) of the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013.15.30Where junior counsel is paid at prescribed rates in the High Court or below, an application for an enhancement of the rates may be made on the bill.
5Civil Legal Aid (Remuneration) Regulations 2013, reg 7(3), as inserted by reg 2(2)(b) of the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013. The criteria for enhancement are that the work done by counsel (either a particular item of work or hearing, or on the case as a whole):
•Was done with exceptional competence, skill or expertise;
•Was done with exceptional speed; or
•Involved exceptional circumstances or complexity.
15.31In calculating the percentage enhancement, costs officers will have regard to the degree of responsibility accepted by counsel, the care speed and efficiency with which counsel prepared the case and its novelty weight and complexity. Assessment of the care with which counsel prepared the case includes the skill with which the work was carried out and in particular the case shown to a vulnerable client, while the weight of the case means the volume of documentation, the number of issues arising or the importance of the case to the client.
6Civil Legal Aid (Remuneration) Regulations 2013 reg 7(5), as inserted by reg 2(2)(e) of the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013.15.32The percentage enhancement can never exceed 100 per cent in the Upper Tribunal or High Court and 50 per cent in the County Court. In determining what is exceptional, regard is to be had to the generality of proceedings to which the prescribed rate to be enhanced applies.
Payment on account of counsel’s fees
15.34Counsel can apply direct to the LAA via CCMS for a payment on account of their costs.
8Civil Legal Aid (Remuneration) Regulations 2013 reg 11. An application can be made on each anniversary of the issue of the certificate, with a window of two months before and four months after the relevant date.
15.35An application can also be made at any point if:
•the proceedings have continued for more than 12 months;
•it appears unlikely that an order will be made for the costs of the case to be assessed within the next 12 months; and
•delay in the assessment will cause hardship to counsel.
15.36An application can also be made if:
•the proceedings have concluded or counsel is otherwise entitled to payment; and
•six months have elapsed since then and counsel has not been paid.
On application, the LAA will pay up to 75 per cent of counsel’s reasonable fees. If the final payment is less than the amount of any payments on account, the outstanding balance will be recouped from counsel.
9Civil Legal Aid (Remuneration) Regulations 2013 reg 12.Case study
I am instructed in a case where my solicitor’s certificate was issued on 1 April 2015 and the case is still ongoing. When can I make a payment on account application?
You can apply on the anniversary of the issue of the certificate, but there is a window either side to allow some flexibility – two months before and two months after the date. So you could have applied for a payment on account at any point between 1 February and 1 June 2016. If the case continues into 2017, you can apply again at any time between 1 February 2017 and 1 June 2017, and so on into 2018 if applicable.
At any time, you should put your total costs to date into CCMS, and the LAA will pay 75 per cent of that (subject to reasonableness), less any payment you have already received. So, for example, if you were paid £1,000 on account in 2016 and by 1 February 2017 your costs have reached £5,000, you should put £5,000 on the form and will be paid £2,750 (75 per cent of £5,000 = £3,750, less £1,000 already received).
15.37These provisions do not apply to family proceedings where FAS applies – see chapter 16 for FAS.
High cost civil cases
15.38Where the case is a high cost case (see chapter 5), any advocacy work will also be part of the individual case contract.
15.39Any contract will be with the solicitor, but where an external advocate is instructed, they will need to agree to the payment rates and case/stage plans.
15.40The rates payable to counsel depend on the classification of the case. Where there is a possibility that, if successful, inter partes costs will be recovered, the case is deemed to be ‘at risk’ and the rates will be £50 per hour for junior counsel and £90 per hour for senior counsel. Where prospects of success are only borderline but the case is nonetheless being funded because of its overwhelming importance to the client, wider public interest or significant human rights issues, the rates will be £65 and £117 respectively. Where there is no prospect of inter partes costs, standard remuneration rates will apply.
10Available at www.gov.uk/government/publications/high-cost-cases-non-family-civil. The first £5,000 of counsel’s fees will always be paid at standard rates rather than high cost case contract rates.
15.41See chapter 13 for claiming costs in high cost civil cases.
Unpaid fees
15.42Counsel can only claim fees through solicitors. In certificated cases, solicitors must include counsel’s fees in the bill and must submit the bill to the court or LAA for assessment within the three-month time limit. See chapter 13 of Part A for details of the process.
15.43Where the solicitor fails to submit the bill, counsel will not be paid. There is no direct remedy, since there is no provision for counsel to bill the LAA directly. Barristers can place solicitors on the List of Defaulting Solicitors, and can complain, through the Bar Council, to the SRA. Note that the new Bar Council Standard Terms of Business, released in February 2013, do not apply to legal aid work.
15.44So counsel cannot directly enforce costs against solicitors who fail to submit bills for payment. Counsel can to some extent protect themselves by using the payment on account scheme to recover 75 per cent of their costs.
15.45It is a term of the Standard Civil Contract that bills be submitted within the three-month time limit;
112013 Specification para 6.34, 2014 Specification para 6.34, 2015 Specification para 6.33. failure to do so is a breach of contract, and repeated failure may lead to sanctions up to and including termination. Counsel may wish to draw a solicitor’s failure to submit a bill to the attention of the LAA. Conversely, solicitors are not paid in CCMS cases if counsel have not submitted their bill, so it is much appreciated if this is done quickly.
Inter partes costs and legal aid only costs
15.46In cases where inter partes costs are possible, it is not uncommon for costs to be ordered or negotiated on the basis of payment of part of the costs of the case. If so, it is important that you are clear as to the terms of the order or agreement, as in some cases but not others you may be able to claim the balance from the legal aid fund. The Standard Civil Contract allows you to claim from the legal aid fund any costs not payable by another party (legal aid only costs), but only if certain conditions are met – see paras 6.51 and 6.52 of the 2013 and 2014 Specifications and paras 6.50 and 6.51 of the 2015 Specification.
15.47The Specifications define ‘legal aid only’ costs – costs that can be claimed from the legal aid fund even where inter partes costs are recovered – as:
•costs of completing legal aid forms and communicating with the LAA;
•certain limited types of costs disallowed or not agreed;
•costs of work not covered by a costs order or agreement.
Where a costs order or agreement specifies that another party should pay a proportion of the client’s costs (but not a fixed sum), the same proportion of the total work that is not covered is legal aid only costs.
15.48To take a practical example, say total costs on the case are £2,000 at legal aid rates and £4,000 at inter partes rates. If the other side agree to pay your costs in the sum of £2,000, that could be expressed in one of three ways:
•£2,000 as the total agreed costs of the case;
•agreement to pay costs between x and y dates, totalling £2,000; or
•agreement to pay 50 per cent of the costs, being £2,000.
In each case, you receive £2,000 from the other side. In the first case, that £2,000 represents the total costs of the case, so there are no legal aid costs (apart perhaps from £100 or so for filling in the APP1 and so on). In the second case, costs outside the agreed dates are not subject to the costs order, so you can claim those costs in addition to the inter partes costs you have received. In the third case, the other side has agreed to pay 50 per cent of your costs, so the other 50 per cent are legal aid only costs, so you can claim £1,000 (50 per cent of £2,000 at legal aid rates) from the LAA in addition to the £2,000 from the other side.