Litigator’s Graduated Fees Scheme and Court Appointees Consultation Papers

The litigators’ fee consultation ends on 24 March 2017. The government promised a full review of the way the litigator fee is paid. Instead it simply proposes a cut to that and the fees available for court appointed cross examination.

Respond to the Litigators’ Fee Consultation

Our response is here below, but if you wish to add your own then please follow this link,

Question 1

Do you agree with the proposed reduction of the threshold of PPE to 6.000?  Please give reasons.

It is premature to take such a step without the promised review of how criminal litigators are paid.  At this stage, without further review, this is simply a dramatic fee cut, albeit in a small number of cases.  A simple fee cut cannot be properly described as an ‘update’ to ‘the way we pay criminal litigators’.

Bearing in mind the fragile nature of the supplier base, this step should not be looked at in isolation.  The profession currently awaits an announcement for what the rates of pay will be under the new 1 April criminal legal aid contracts.  The following still appear to be undecided:

• Will there be a reinstatement of the suspended 8.75% cut?

• Will firms who have invested in in-house advocacy suffer the dramatic cuts predicted under the AGFS reform proposals?

• What will be the effect of the promised LGFS review in terms of fee levels?

The Ministry of Justice is already in possession of research that demonstrates the likely effect of further fee cuts that will render the provision of legal aid advice and representation economically unsustainable.

At this stage, it is hard to see how these proposals ‘reduce bureaucracy’ or remove ‘unnecessary burdens’ on litigators.  It simply removes money for cases that need preparation by ‘expert litigators’ as acknowledged by the Ministry, and therefore the means to pay these experts a level of pay commensurate with their expertise.  Indeed, the proposal to require claims for ‘special preparation’ in a higher proportion of cases imposes bureaucracy and burdens on both the litigator, firms and the Legal Aid Agency or Criminal Cases Unit.

Litigator’s fees are properly based on the amount of pages of evidence served by the prosecution.  The amount of PPE is a useful proxy for how long a case will take to read.  It cannot be the Ministry’s position that the PPE should not be read – in the discharge of expert professional advice and representation it must be.

In serving the PPE, the Crown Prosecution Service must be sure that it is relevant and admissible.  If not, it would fall within Unused Material.  There is, of course, no payment due to litigators for considering such material.  In the larger cases there will be more of this material, and again the PPE proxy factors in that consideration and is a fair indication of how much additional material will have to be considered.

It would appear that the position of the Ministry is that more material is now being served than was being served when the scheme was designed.  If the material is not relevant, it should not be served, and would not be remunerated.  That is an issue for the Crown to address with the Prosecution.  It is likely to be seen as something of a blessing if the CPS could show restraint in what was served, rather than adopt the current position where many pages are served in electronic form at the last minute, with no hint of relevancy until the pages are considered by the litigator.

More restraint from the Crown would result in reduced LGFS payments and the more streamlined justice system that the Ministry wishes.  In the meantime, litigators should not be financially penalised.  The current system is closer to the aim of reflecting fair payment for work reasonably done (ie. reading the case and advising accordingly) that the proposed limit of 6000 pages.

A litigator will always ‘need’ to read the papers served.  Napper has not contributed to the Crown decision to serve more papers.  Over the years the various Statutory Instruments began to include electronically served evidence in the definition of PPE to reflect changing technology.  The effect of that was always going to be an increase in LGFS payments.

Napper simply reflected the current technological developments that permit the creation of pages of evidence that have never been on paper – presumably just the sort of development that the Ministry would embrace.  It is disingenuous to suggest that pre-Napper there was a limit of pages claimed – these proposals do not return the situation to pre-Napper costs.  As a result, the Ministry should consider whether the objection is to electronic statements or amount of PPE served by the Crown.  Once considered, the Ministry can simply confirm this is a fee cut that fails to recognise the current realities of service of PPE.

All evidence is now served electronically on the Crown Court Digital Case System.

The Ministry is in error in suggesting that, for example, phone evidence is quicker and easier to read than other evidence.  The ‘search function’ may identify any particular number, but it will not permit a detailed analysis of patterns in calls, combinations of calls or call duration that might be relevant in a complex conspiracy.  It will not interpret text messages that contain slang or abbreviations.  It will not permit the preparation of an argument that will undermine a prosecution assertion.  Once more, this would appear to be a consultation put forward that has no interest in exploring the realities of preparing a complex criminal case.

We note that, at least in part, the decision to cut fees is based on ’anecdotal evidence’ from case workers.  We would suggest that this is not a proper base for drastic fee cuts.  It is not possible to draw any conclusion as to a fall in Special Preparation claims – it may be likely that firms are simply defeated by the unnecessary burden of bureaucracy that this imposes so do not bother.  The Ministry will know, anecdotally, that firms often undertake work for clients where in the event no claim for payment is possible due to delays in processing legal aid, so such an approach would not be a surprise.

The consultation supplies figures in page 6 relating to the increase in the number of such ‘large’ cases.  Again, the consultation fails to acknowledge that the decision to serve PPE is a matter for the prosecution, not the litigator.  The plan will not provide any incentive on the prosecution to properly review papers served.  Instead, it provides a perverse incentive to overload the defence with a large volume of material of borderline relevance, knowing that the litigator will struggle to have a properly staffed office to read it.  The prosecution choose whether to make these cases ‘PPE heavy’.

Fixed fees have always been ‘sold’ to the profession on the basis that there will be ‘swings and roundabouts’.  This is understood to mean that while there will be cases that will not be economically viable to undertake, this will be made up for by other cases that carry the ‘profit’ that permits a firm to continue to be viable.  Unfortunately, this would appear be another example of the Ministry seeking to remove the profitable cases and leaving the profession with those that are not economically viable.  This should be looked at in the context of the evidence the Ministry holds and the threat to financial viability set out at the start of this response.

Question 2

If not, do you propose a different threshold or other method of addressing the issue?  Please give reasons.

No.

Leave it as it is until you undertake the full review which should be carried out as soon as possible.

Question 3

Do you agree with the proposed capping of court appointees’ costs at legal aid rates?  Please give reasons.

No.

It seems likely that the bulk of defendant’s where there is a court appointed solicitor involved will have had legal aid refused.  Experience tells us that will be a small minority who choose not to seek representation, this will not be a significant number.

As a result, while firms would represent clients for legal aid fees were legal aid available, the bulk of these client would only be represented at private rates.  The reason why they are not represented is because they cannot afford private fees.

As a result the suggestion is objectionable for this reason – why should firms accept what is a private instruction by the court at legal aid rates, and not private rates?  The rates are higher because they reflect private fee levels which are many times higher than legal aid rates.  The Ministry will no doubt note that from the fees charged by firms it chooses to instruct.

This proposal (again) ignores the sensitive nature of the cases; the care needed in cross examination; that responsibility being discharged where a litigant in person will have actually prepared the case (or not); and the need of the courts to ensure that there is representation to permit these trials to proceed.

The proposal is likely to have the result that fewer advocates undertake the work, irrespective of the contractual clause – there will always be a good reason not to undertake such work at a loss – and there will be a knock on effect for the courts and vulnerable witnesses.

Once more, the suggested reform fails to take into account what is required of the advocate involved. For example, in a rural area the advocate might be some distance from the court centre.  He might have reserved a full day to cross examine three witnesses following a court appointment.  On arriving at court, the defendant (not his client) chooses to plead guilty when the witnesses attend.  This is out of the advocate’s control.  He will be paid 1 ½ hours travel at c.£25 per hour, some waiting, and for a brief attendance.  The advocate is unable to undertake further work for the rest of the day, and that day will be undertaken at a financial loss.  The current fees will make that loss less likely, and more enthusiasm will be found in experienced advocates who can undertake the work.

An alternative would be to bring the scheme within the ‘swings and roundabouts’ of the legal aid system proper by either:

• Removing the means test for cases identified as needing a ‘court appointment’ so that full representation can be provided. This doesn’t deal with defendants who choose not to have representation so may not be attractive.

• Alternatively, or in addition, pay tiered fees identical to those paid for trials under legal aid fees ie. category 2 fees, the level dependent upon work undertaken and submitted on CRM6.

In such cases they will be remunerated as if the client had received legal aid, is likely to enhance client choice and may be unarguable in terms of mechanism for payment.

Question 4

Do you have any comments on the Equalities Statement published alongside this consultation and/or any further data about protected characteristics we should consider?

Having considered the Impact Assessments we make the following points:

• We do not accept that the disparity in rates for court appointments and legal aid rates is ‘unfair’. It reflects private fee levels for a private appointment.

• As a result, this is not an historic anomaly but reflects the fact that court appointments are not ‘legal aid’ for a client, but a private instruction to protect a witness.

• The assessment fails to note that the witnesses themselves are likely to be affected stakeholders where trials cannot proceed due to a lack of advocate.

• The principal uncertainty, not properly identified, must be whether anyone will provide cross-examination at the proposed rates.

• The equalities assessment fails to acknowledge the witnesses as being a potentially affected class of person. It might be a generalisation, but it would seem correct to say that the likelihood is that the witness requiring protection will be female in many domestic violence cases.  As a result, anything likely to impact on witnesses in terms of whether a trial is effective and the expertise of those cross-examining at much reduced fees will impact more on women.  Of course, the Ministry will hold these figures so it is surprising that they weren’t mention.

• By definition, those who need representation as they are not fit to plead are likely to have the most severe mental health difficulties. I am not sure that their interests have been adequately considered.

• It is perhaps unbelievable that the effect on witnesses of these proposals is not mentioned, bearing in mind in relation to court appointments the whole reason is to protect them.

• All of the assessments are predicated on the believe that advocates will continue to accept instructions as before. They won’t.  Factor that in look again at the impacts to the courts, defendants and witnesses.

Any risks from either proposal can be mitigated by leaving things as they are.