LEGAL AID CHANGES IN FAMILY PROCEEDINGS

FROM 15 November 2010

Preface

Please note that these are new schemes. It is inevitable that because of their newness

issues will arise that have not hitherto been anticipated.

Introduction

The Legal Services Commission has since the Report of Lord Carter been committed to the

introduction of standard fees for all types of family proceedings. The first stage in the

process was to introduce standard fees at levels 1 and 2 (Controlled Work) in relation to all

civil and family cases. Level 3 standard fees were introduced for preparation costs in

Section 31 Care Proceedings. Those changes came into effect on 1 October 2007.

Providers were put on notice of the intention to introduce at Level 3 (Licensed Work)

standard fees in all private law family cases and standard fees for advocacy in relation to all

family proceedings. A fairly lengthy consultation process took place regarding the proposals.

On 21 October 2009 the Legal Services Commission produced its response to the “Family

Legal Aid Funding Consultation”. In this section we consider these new schemes.

The substantial changes to remuneration will come into effect on 15 November 2010,

unless litigation threatened as a result of the contractual tendering process puts the start

date back.

Justification for the Scheme

“The Scheme provides certainty to advocates and funded clients and aids the commission

by increasing control over expenditure.”

(Guidance on the FAS)

Enabling Provisions

As we know the Access to Justice Act 1999 enabled the Legal Services Commission to

change the methods of funding cases. The Act enabled the Legal Services Commission to

restrict providers to those who entered into Unified Contract. The existing Unified Contracts

were expected to come to an end on 31 March 2010, but were extended to 13 October

2010. It is no coincidence that the new funding regime for family law proceedings comes

into effect at the same time as the new contracts. The Legal Services Commission was

enabled by the Access to Justice Act 1999 to introduce the new schemes. The Community

Legal Service (Funding ) (Amendment No 2) Order 2010 was made on 28 March 2010 and

laid before parliament on 31 March 2010. It comes into effect on 15 November 2010. It

refers to the new contract as the “2010 Standard Civil Contract”.

Funding Granted before 15 November 2010

The new regime does not apply to applications for funded services made before 15

November 2010 or where a client was in receipt of Investigative Help and Family Help

(Higher) before 15 November 2010 and the funded services were extended on or after that

date to include Full Representation. It also does not apply to a certificate issued under the

Funding Code or which was applied for before 15 November 2010 (Whether or not the

scope of the certificate was extended on or after that date). In these cases the 2007 Order

continues to have effect as if the 2010 (Amendment) Order had not been made (Article 7 to

the Community Legal Service (Funding) (Amendment No. 2) Order 2010).

It should also be borne in mind that there are still some cases funded under pre-2007

regimes and they are also not affected.

Definitions

The following are recorded in Article 3 to the Community Legal Service (Funding)

(Amendment No.2) Order 2010:

Wording Definition

“2010 Standard Civil

Contract”

Means the contract between the Commission and a provider

for the provision of funded services, including the contract

for signature, the standard terms, the schedules and the

specifications.

“Advocates Meeting” Means an advocates’ meeting held under stage 2 or 3 of the

Public Law Outline.

“Advocacy Services” Means work done -

(I) by an advocate at a Court hearing;

(ii) by an advocate, as such, in connection with an

advocates’ meeting;

(iii) by counsel in connection with a conference, and

(iv) by counsel in connection with an opinion;

and fees and rates for Advocacy services include

remuneration for preparatory work, travelling, except where

an exceptional travel fee is payable under Schedule 2 and

waiting in relation to those services.

“Child Abduction

Proceedings”

Means proceedings within Section 11.13 of Part 1 of the

Funding Code or a dispute about legal rights and duties

which would fall within that section if the level of service

provided were to be extended to Legal Representation.

“Counsel” Means -

a barrister in independent practice; and

a solicitor or Fellow of the Institute of Legal Executives who

does not work in a partnership and who does not hold a

2010 Standard Civil Contract.

(Solicitor advocates (including solicitors with higher rights of

audience) who work for, or as part of, a partnership or

barristers who work in partnership with any other legal

representative do not count as Counsel for the purposes of

this guidance - Guidance on the FAS).

“Public Law Outline” Means the outline set in the table following paragraph 10 of

the Practice Direction, Public Law Proceedings: Guide to

Case Management, April 2010, given by the President of the

Family Division.

Further definitions that we need to heed:

Wording Definition

“CPGFS” The Care Proceedings Graduated Fee Scheme

“PFLRS” The Private Family Law Representation Scheme

“FAS” The Family Advocacy Scheme.

“HSFS” Higher Standard Fee Schemes. (These are Level 3 -

Licensed Work Standard Fees).

“SIPs” “Special issue payments” that were payable under the

Community Legal Service (Funding) (Counsel in Family

Proceedings) Order 2001. They are the fore-runners to bolt-

ons.

“Standard fees” These may also be referred to as ‘fixed fees’ or ‘graduated

fees’.

“Controlled Work” Also known as Legal Help, Family Help (Lower) and Level 1

or Level 2 work.

“Licensed work” Also called Certificated Work and Level 3 or Level 4 work

What are the Key Changes ?

There are changes to both Private Family Law Proceedings and Public Law Family

Proceedings. Not all types of family proceedings are affected.

The Private Family Law Representation Scheme (Private Family Law Proceedings)

Standard fees are introduced at levels 3 and 4 for cases started after 15 November 2010.

There are different types of case and different standard fees. There are provisions enabling

cases to be exceptional and escape the standard fee at levels 3 and 4 (Licensed Work).

The Care Proceedings Graduated Fee Scheme (Public Family Law Proceedings)

The amounts of the standard fees at level 3 ( Licensed Work ) are reduced to reflect the

incorporation of preparation costs for hearings in the advocacy fees.

The exceptional escapes available in relation to standard fees at level 3 still remain.

Minimum Amount of Work

Where a standard fee for preparation is appropriate there is no minimum amount of work

that has to be done before the solicitor may claim the standard fee. However, if a solicitor

consistently claims standard fees where minimal work is done an investigation is likely.

The Family Advocacy Scheme.

Standard fees are introduced based on hearing units with bolt-ons. There are no escape

provisions.

Exclusions

There are a number of types of case and limited types of funding where the new standard

fees will not apply. These will be considered next.

Exclusions from the Schemes

The following types of case are excluded from the schemes:

1. Child Abduction Proceedings.

2. Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975.

3. TOLATA (Trusts of Land and Appointment of Trustees Act 1996) Proceedings.

4. Proceedings under Part 4A of the Family Law Act 1996 (Forced Marriage (Civil

Protection) Act 2007 Proceedings).

5. Defended divorce/judicial separation proceedings.

6. Proceedings for dissolution of a civil partnership or the legal separation of civil

partners.

7. Proceedings for nullity of marriage or annulment of a civil partnership.

8. Applications for a parental order under the Human Fertilisation and Embryology Act

2008.

9. Proceedings under the inherent of the jurisdiction of the High Court in relation to

children (Wardship).

10. Representation of children in proceedings other than proceedings which are specified

proceedings within the meaning of Section 41(6) of the Children Act 1989 or are

heard together with such specified proceedings (appointment of a Guardian generally

made under Rule 9.5/9.2).

11. Proceedings in the Court of Appeal or the Supreme Court.

12. Final appeals (as defined in the 2010 Standard Civil Contract) (Note that appeals

from the Family Proceedings Court to the County Court are excluded from the

standard fee regime, provided that they are final appeals from final orders. Also note

that if there more than one appeal against a final order each is excluded).

13. Under individual case contracts for High Cost Cases.

14. In relation to advocacy Queen’s Counsel acting as such under a prior authority given

by the Commission.

Further Exclusions - Reminder

Do not forget that the new regime only applies to services from 15 November 2010.

The Private Family Law Representation Scheme (Private

Family Law Proceedings)

Standard fees are already in place for Controlled Work - Levels 1 and 2.

Different Types of Case

There are different standard fees for different types of case. There are standard fees for:

1. Children cases.

2. Finance cases.

3. Domestic Abuse cases (“This category includes all proceedings for the protection of

the person arising from a family relationship. It will include any application for a non-

molestation or occupation order under Part IV of the Family Law Act 1996 and

injunctive relief under the Protection from Harassment Act 1997. It should be noted

that although applications for a Forced Marriage Protection Order are included within

this definition for the purposes of the Funding Code they are excluded from the FAS

scheme”) (Guidance on the FAS)

Locality

There are different standard fees for London and non-London. Obviously, the fee for

London is somewhat higher than that for non-London. “London” must apply to the London

Regional Office. It has been said that the higher rates for London represent a 20% uplift on

the national fee.

Different Courts

There are different standard fees for the Family Proceedings Courts & County Courts and

the High Court. The FPC and County Courts are defined as “Other” Courts. It has been

said that the higher rates for London are 20% uplift for the national fee.

Differences in the Fees

On the face of it, it seems surprising that the standard fee for domestic abuse proceedings is

the highest fee. However, it is the only standard fee under that category. For Children

cases there are fees for Family Help (Higher) and for Legal Representation. For Finance

cases the same two apply. In addition there is an additional settlement fee. The reason why

there are not additional payments for advocacy for Domestic Abuse Proceedings is because

the LSC considers that these cases generally are dealt with on an emergency basis and full

representation, rather than Family Help (Higher) is granted.

What is Covered in relation to Children and Finance Cases

Level 3 (Family Help (Higher)) covers all work up to, but excludes preparation for a final

hearing. Level 4 (Legal Representation Standard Fee) covers preparation for the final

hearing.

Finance Case Settlement Fees

The guidance records:

“Early Resolution Fee

37. This bolt-on fee is claimable only in Private Law Finance cases that settle at

the first appointment or FDR. It may be claimed by the advocate who is entitled to the

Hearing fee for that hearing, but only if the following conditions are satisfied:

(a) The Finance Aspect of the case has been fully concluded at that first appointment

or FDR hearing;

(b) The advocate attending that hearing materially assisted in the settlement;

(c) The Finance Aspect of the case does not proceed further to a new Level of

Service within six months of the settlement;

(d) There has been a genuine settlement to conclude that Aspect of the case, rather

than, for example, a reconciliation between the parties or one party dying or

disengaging from the case;

(e) The settlement is recorded in a form of a Consent Order approved by the Court,

either at the hearing itself or subsequently.

38. Where the conditions for the payment of a settlement fee subsequently

change e.g. the agreement breaks down within 6 months and there are subsequent

proceedings to enforce the order then the settlement fee may be recouped.

39. Entitlement to this bolt-on settlement fee is separate to the entitlement to the

Settlement Fee payable under the PFLRS to the solicitor. For example, if a case is in

substance settled by the solicitor prior to the FDR Hearing and a hearing took place

only to secure a Consent Order, no bolt-on fee could be claimed by the advocate.

However if the advocate had materially assisted in the settlement negotiations or by

way of legal advice or drafting, the bolt-on fee could be claimed provided the hearing

took place and the above conditions were satisfied.

40. Only one settlement fee is payable per case under FAS. In the event that two

claims for a Settlement Fee on a single set of proceedings are submitted then the

second claim submitted will not be paid.”

Note

There is a settlement uplift at Level 3 (Family Help (Higher).It apples only for finance

cases. Only one fee may be claimed. It is effectively an early resolution fee (bonus).

The settlement fee is only payable where a case settles at Level 3 and does not proceed

to a final hearing. Where the settlement fee is claimed the Level 4 Legal Representation

Fee must not be claimed. There must be a genuine settlement to conclude the case

rather than reconciliation or the death of a party or a party failing to provide instructions.

Guidance

When to Apply for Full Representation

Once it becomes clear that a matter cannot be resolved or fully resolved by negotiation

and a contested final hearing is necessary, an application should be made to amend the

certificate to cover legal representation. For example, if the Financial Dispute Resolution

Appointment does not result in settlement an application should be made immediately for

full representation. In Children Cases Family Help (Higher) covers all steps, short of work,

in relation to or representation at a final contested hearing. The usual scope of the

certificate includes representation at any finding of fact hearing and consideration of any

CAFCASS report.

In Finance Cases a limited amount of follow-up work arising from any Financial Dispute

Resolution Appointment is within scope without the need for an amendment to the

certificate. (The current Family Decision Making Guidance still applies).

Warning

Section 37 MCA Applications

Note that the costs of applications under Section 37 of the Matrimonial Causes Act 1973

and applications for maintenance pending suite do form part of the standard fees and

additional fees may not be claimed for these.

Enforcement

A separate enforcement fee is payable if an application to the Court is required to enforce an

order irrespective of the passage of time that has elapsed following the order being made.

This will be equivalent to half the relevant Level 4 fee. For example, if an order in relation to

children is the subject of enforcement proceedings then the enforcement fee would be half

the level for children fee.

A separate fee for enforcement will only be payable where there has been non-compliance

with an order. A separate application is required to the Court on this issue. For example this

may be for an order permitting the District Judge to execute a transfer of property.

Warning

Do note the requirement to obtain an amendment to the certificate to cover enforcement

proceedings.

In domestic abuse cases where there has been a breach of an injunction and committal is

sought a separate domestic abuse fee will be payable.

Joined Parties

Providers will receive different payments depending upon the stages of which they

participate in the case only. Higher payments will not be made for multiple parties as exist

for more than one parent or child in care proceedings.

Change of Solicitors

The existing provisions in relation to Section 31 Care Proceedings apply to Private Law

Family Law proceedings. Do note that in Private Family Law Proceedings the escape is

three times rather than two times the standard fee.

Escapes

The escape in Private Law Family Proceedings at Levels 3 and 4 is three times the standard

fee calculated by using hourly rates, excluding any uplifts and disbursements and VAT.

Warning - Separate Files

The LSC has confirmed that solicitors will be required to keep separate files for each

case. Thus there will have to be one file for ancillary relief and one for contact if the client

has that representation. Separate ledgers for time recording will be required.

This is necessary for the LSC to calculate exceptional items and to ensure accurate

claims.

Warning

1. Do not be confused and apply the mechanism for escape applicable to Public Law

Family Proceedings.

2. Do not include enhancements to calculate escapes.

The escape is calculated on whatever fee is payable. In a finance case attracting only a

Level 3 payment then the exceptional threshold is three times the Level 3 finance fee. If

Level 3 and Level 4 fees are payable the escape threshold is three times the combined

Level 3 and Level 4 fees.

Guidance

Do note that a case does not need to be exceptional at each level. It is the total

combined costs that is then material.

Where a case involves multiple proceedings there could be children, finance and domestic

abuse proceedings cases. In such situations there is a separate escape threshold for each

aspect. This means that a case involving children might escape the standard fees and a

claim made on the basis of a full bill. A solicitor may also be conducting a finance case that

does not escape and that would attract the standard fee.

Effect of a Case Escaping

Where a case escapes the standard fee regime a normal bill is prepared. This might be a

CLS Claim 1A or a bill for assessment by the Court if the LSC does not have jurisdiction,

because the profit costs, disbursements and fees of counsel exceed £2,500.00 and the

proceedings were concluded in a Court other than the FPC.

The Family Advocacy Scheme

Article 8 of the 2010 Amendment No. 2 Order revoked the Community Legal Service

(Funding) (Counsel in Family Proceedings) 2001, except where the funded services were

granted before 4 October 2010. (The earlier sections concerning exclusion should not be

forgotten. Where a case is excluded from the scheme. Solicitors are remunerated at the

appropriate prescribed rates. Where advocacy is provided by Counsel, they are subject to

reasonable remuneration as determined on cost assessment. Any such assessment of the

reasonableness of Counsel's fees may, however, take into account the rates which would be

payable if the services had been provided by a solicitor, or the rates which would have been

paid under the Community Legal Service (Counsel in Family Proceedings) (Remuneration)

Order 1991. Where Advocacy Services are excluded from the FAS and are being claimed

at hourly rates as set out in the Payment Annex (see also the schedules to the Community

Legal Service (Funding) (Amendment No. 2) Order 2010) , the preparation rate contained in

the Payment Annex should be used for preparation for advocacy where this is claimable.

Where a single hearing or activity involves significant work both within and excluded from the

FAS the whole hearing or activity will be treated as excluded from the FAS for remuneration

purposes.

The Guidance on the FAS states:

“For particular Advocacy Services only two fees can be claimed per case. In order to

determine

what is or

is not a

'case' for

the

purposes

of

determinin

g

appropriat

e claiming,

application

s to the

court

constitute

a single

set of

proceeding

s,

irrespectiv

e of

whether

they are

made

separately

or

together,

where they

are heard

together or

consecutiv

ely or are

treated by

the court

as a single

set of

proceeding

s. It is

usual for

the court to

deal with

residence

and

contact

issues

separately

from

financial

issues in a

divorce.

Both

aspects

may be

treated as

a separate

set of

proceeding

s unless or

until the

court

orders

them to be

heard

together.

In private

law

proceedings each aspect of the case, e.g. children and finance, counts as a separate

case for the purposes of claiming opinions and conferences.”

There are different graduated fees for Public Law Family Proceedings and Private Law

Family Proceedings. Further, there are different graduated fees in Private Family Law

Proceedings in relation to Children, Domestic Abuse and Finance cases. The fees differ

depending upon the Court in which the advocacy was conducted. The lowest fees are for

the Family Proceedings Court. County Courts stand in the middle followed by the highest

fees payable for the High Court. The existing requirement to obtain authority for Leading

Counsel or multiple Counsel will continue.

Good News

There is no longer a requirement to obtain prior authority to instruct Counsel in

proceedings in the Family Proceedings Court, since under FAS the same standard fee will

be paid for work undertaken there regardless of the professional status of the advocate.

Bad News

The “Good News” above applies only to new funding from 15 November 2010. For old

certificated work the old rules apply.

Key Points

1. The scheme is a national scheme.

2. The same fees apply regardless of where the advocacy is done or where the

advocate is based.

3. There are no higher fees for advocates in London.

4. There are no panel uplifts for advocacy.

5. The same fee is payable irrespective of the particular party represented in the

proceedings.

6. The same fee is payable no matter how many parties are represented.

7. It is not necessary for hearings to take place within the Court confines. Hearings can

take place by video or by telephone conference.

8. Fees are not calculated on the basis of hourly rates, but instead are calculated on the

basis of hearing units.

9. For interim hearings the fees are paid under two hearing units. The first unit covers

up to one hour and the second hearings up to 2.5 hours.

10. For Finance Cases there are separate fees for the Family Dispute Resolution

Appointments.

11. There is a settlement fee, applicable only in finance cases, where an early resolution

is achieved.

12. In all cases there are final hearing fees.

13. Where a court directs a party to adjourn for further discussions at court then that time

will be included in the calculation of the interim hearing fee (Paragraph 3.6 of the

Guidance on the FAS)

14. If an interim hearing takes place over more than one day, the relevant multiples of

the hearing unit are paid for the time spent on each day during which the hearing

continues, but not for the time spent after 5 pm unless the case concludes on that

day. For example, if an interim hearing lasts five and a half hours in total, spread

over two days, the fee payable is Hearing Unit 2 x 3. Note that it is never possible to

claim both Hearing Unit 1 and Hearing Unit 2 for the same hearing or to claim

multiples of Hearing Unit 1.

15. It should be noted that in Domestic Abuse Proceedings there are no differential fees

for cases in different Courts The same fees apply to each Court. It must be rare for

domestic abuse proceedings to take place in the High Court.

16. An application to a court of first instance for permission to appeal is within the scope

of the FAS and will be treated as part of the provision of advocacy at the hearing

before that court.

Warning

If a solicitor attends at court with an advocate this is outside the scope of the FAS - the

cost is part of the standard fee (the costs may assist the escape of the case).

What is a Final Hearing?

The guidance provides:

“8. If the case is listed as a main hearing but for some reason is adjourned or

postponed before the court has considered the substantive issues, the hearing will

not be considered a final hearing e.g. on or before the due date it emerges a party

has not been served correctly or the wrong hearing date was sent it is clear that this

is not a hearing that is expected to be effective or contested.

9. A directions hearing that concludes the case does not make the hearing a

'final hearing'.

10. If a final hearing is listed for a split hearing in a Public Law matter with certain

issues being heard and/or determined in advance of other issues e.g. a finding of fact

hearings in care proceedings then this will generally be payable as a final hearing.

11. On the making of an order the court may decide to review the position after

an interval of some months. That subsequent review is not a continuation of the final

hearing but an interim hearing. The court may make further directions, continue or

vary the order. None of these circumstances turn that later hearing into either the

continuation of the final hearing or a new final hearing.

12. It is possible in certain circumstances for more than one final hearing fee to

be paid in a case. In particular this can occur where a final hearing has taken place

but subsequent enforcement proceedings are issued which are required to be finally

determined or where an earlier fact finding hearing has taken place.”

In care proceedings, the main hearing would be the hearing at which the court determines

whether or not a care order is made. In ancillary relief proceedings, it is likely to be the

hearing at which the court determines the form of relief entitlement and in family injunctions,

the on notice hearing which will determine the form and continuation of the without notice

injunction order made. (Paragraph 3.10 of the Guidance on the FAS)

Where a case is resolved at an Issues Resolution Hearing held under the Public Law Outline

(PLO) and no further hearings take place then this hearing will be paid as a final hearing.

(Paragraph 3.8 of the Guidance on the FAS)

Cancellation of Hearings

Where a counsel/self-employed advocate has been instructed to provide advocacy at a

hearing and carries out at least 30 minutes of preparation work for the hearing, but the

hearing does not take place (i.e. it is cancelled before the advocate travels to court) they will

be able to claim a payment for a one hour hearing (Hearing Unit 1) if the cancelled hearing

was an Interim Hearing, or half of the Final Hearing fee if the cancelled hearing was a Final

Hearing. No bolt-on fees may be claimed for a cancelled hearing. This fee will only be

available to a self-employed advocate. Where an in-house advocate is to undertake a

hearing any preparation carried out by the in-house advocate may be treated as preparation

part of the representation fee under the PFLRS and CPGFS and may count towards whether

a case becomes exceptional.

Warning

This fee is only available to counsel/self-employed advocates. Where work is done in this

situation by an in-house advocate the work is treated as preparation and part of the

representation fee. The time should be recorded to consider escape from the regime.

What does Advocacy Include?

The definition includes all preparation or incidental work relating to the hearing including

preparation, travel to court and waiting at court as well as the advocacy within the hearing

itself. (Paragraph 3.10 of the Guidance on the FAS)

Guidance

The advocacy fee covers all time at Court. The fee is calculated from the time at which

the case is listed to commence. This can be a time earlier that the actual starting time of

the hearing. Some Courts direct advocates to attend in advance of the hearing time for

pre-hearing discussions. The advocacy fee includes all preparation for hearing, travelling

to and from Court, waiting time at Court, the time spent in advocacy itself and the time

spent in discussions at Court. Do note the separate provisions in relation to conferences.

The fee is calculated by the length of the hearing from the time when the Court directed

the advocate to be at Court to the time when the hearing concluded. Adjournments for

lunch or overnight are excluded. Where a Court delays the start of the hearing by doing

other business this is taken into account.

Where an ex parte application is involved the calculation of the hearing unit will run from

the time when the application was issued and not necessarily the time when the advocate

got before the Judge. It would be sensible for the advocate to get the Court Clerk to

endorse papers with the time when the proceedings were issued.

Emergency applications

Where an emergency application is involved, for example where an ex parte application is

made, the starting time is the time when the application was issued by the Court staff.

This is something that will need to be brought to the attention of the Judge or Magistrate

when the Advocates Attendance form is completed.

Meetings of Advocates

The FAS will pay a separate fee for advocates' meetings that take place as directed by the

court in accordance with the Public Law Outline to encourage attendance. These will be

payable in any public law proceedings where the PLO is applied.

The guidance states:

“15. Although it would usually be expected that two advocates' meetings would

take place in accordance with the PLO, provided that the advocates' meeting is held

as prescribed by the court and in accordance with the PLO there is no limit to the

number of these fees that may be claimed. No fees for advocates' meetings will be

payable in Private Law Children cases.

16. The definition of Advocates' Meeting includes meetings held by video

conference, webcam or telephone where this appropriate in the circumstances.”

Guidance

There is an expectation that there should be no more than two meetings of advocates. To

be safe where ever possible seek a direction of the Court where there is to be more than

two.

Payment to replacement advocate

The guidance provides:

“22. In the situation where one advocate replaces another for whatever reason

whilst providing an ongoing Advocacy Service the papers may be passed to another

advocate to undertake the advocacy.

23. As this work is all part of the same activity, both advocates will expect some

payment. The Commission will make the hearing payment to the advocate who

completed the activity i.e. the advocate who completed the advocacy and who is in a

position to make a claim for payment.

24. No separate payment is made to the first advocate for wasted preparation. If

the initial work was undertaken by a solicitor then this should not be claimed under

either the PFLRS or the CPGFS. The matter of how exactly the fees will be

apportioned is left to discussions between the advocates.

25. A claim cannot be accepted from the first advocate as s/he will be unable to

certify that all the work has been completed. Any application for payment by the first

advocate will be rejected. Where it is discovered after the event that payment has

been made incorrectly the erroneous sum will be recouped from the next payment

due to the advocate.

26. Where however different advocates provide different advocacy services on

the same case, each advocate will be entitled to claim payment at the permitted

payment points.”

Multiple Applicants

The guidance provides:

“27. Where there are multiple parties, who are represented by one advocate and

the court deals with the applications by hearing them together, only one fee is due.

For example, if there are two clients each making a Section 8 application under the

Children Act 1989 and the court hears all the applications together and they are all

represented by the same advocate, only one fee will be paid for the hearing rather

than two.

28. Where two applications for payment under the FAS are made in such

circumstances the Commission will process one claim for payment but reject the

others and link the files accordingly to prevent duplicate payment. If the statutory

charge arises the single fee will need to be apportioned equally between the

certificates involved.”

Conferences and Opinions

Opinions

In relation to Children Cases and Finance Cases there are advocacy fees payable for

conference and opinions. The two opinion rule applies. This is applicable to the case. If

there are both Children Cases and Finance Cases each counts separately and up to four

opinions could be allowed. Counsel's written advice on whether to bring an appeal may be

claimed under the FAS subject to the rules on Counsel's Opinions set out at Paragraphs

7.132 to 7.133 of the Family Specification and Section 3.2 (paragraphs 18 to 21) of the

Guidance on the FAS.

In addition to the two opinions claimed per set of proceedings a further opinion may be

claimed in relation to any a proposed appeal against a final order.

An opinion may include providing advice or drafting pleadings/affidavits after the issue of

proceedings. In Domestic Abuse Proceedings no opinions will be allowed. Payments for

their opinions will generally only be available to a self-employed advocate. A separate fee is

not payable to an in-house advocate. Their work will be charged as part of the preparation

work ie standard fee.

Guidance

Where an in-house advocate provides an opinion his time should be recorded. It may

enable a case to escape from the standard fee regime.

Conferences

A conference fee is paid for all work carried out in connection with a conference. This can

include conferences by telephone or video link or webcam where this is appropriate in the

circumstances. Conference fees may only be claimed by Counsel.

Up to two conference fees may be claimed in each single set of proceedings. As for

opinions in private law proceedings, if there are separate children and finance proceedings

these will be considered separately for these purposes. However, no conference fee may

be claimed under FAS in Domestic Abuse proceedings.

As only two conference fees may be claimed Counsel will need to designate the

conferences for which he or she seeks payment under the FAS.

No conference fee may be claimed for any conference held on the same day as a Final

hearing. Any discussions or negotiations taking place on any day of a final hearing will be

covered by the fee for advocacy at that hearing.

A conference fee may be claimed for a conference that takes place on the same day as an

interim hearing, only if the conference takes place outside of any time period that is taken

into account in calculating the fee for the interim hearing. Therefore no conference fee may

be claimed for a conference that takes place between the time that the hearing is listed to

start and the time that hearing actually starts as this will be claimed as part of the Hearing

Unit.

Where different Counsel is subsequently instructed and the allowable conference fees have

already been claimed, no further claims for conference fees can be made. This is so even in

circumstances where the later conference was more substantial. Where one Counsel has

replaced another, Counsel must make enquiries as to whether the conference fees

payments have been claimed from either the outgoing Counsel or instructing solicitors.

The fee includes all preparatory work for the chosen conference, keeping a conference note

on the issues discussed, and work done with the solicitors and experts immediately after the

conclusion of the conference.

Note

Conference fees are not permitted for domestic abuse proceedings. A maximum of two

conferences per set of proceedings will be allowed. The conference fees will only be

available to self-employed advocates. Again, each aspect of the case is reflected. If

there are children and finances cases up to four conference could be allowed.

Conferences may take place at Court on the same day as an interim hearing provided that

they take place outside any time that may be claimed for the hearing unit itself. In other

words there cannot be doubling-up.

Bolt-ons

Exceptional Travel

The bolt-on is £35.60. It is available to both in-house advocates and self-employed

advocates. It is also available for conferences (subject to the limit of conferences).

Travelling is worked out by reference to the office or chambers of the advocate to the

location where the conference or hearing takes place. The threshold is 25 miles travelling

each way. If the travelling is less no bolt-on is payable. In relation to conferences the bolt-

on is only available to self-employed advocates.

This Bolt-on payment is available for all Hearings and is the only Bolt-on which can also be

claimed for attendance at an Advocates' Meeting in Public Law cases (all Advocates) and for

Conferences (Counsel only). However the exceptional travel fee is payable only where the

LSC is satisfied that:

(a) It was reasonable to instruct the advocate in question in all the circumstances of the

case, taking into account whether there are any suitable potential advocates situated more

locally to the court; and

(b) The journey from the advocate's office or chambers to the court (or location of the

Advocates' Meeting or conference) exceeds 25 miles each way.

It may be reasonable to instruct an advocate who is not local where:

(a) the conduct of proceedings required a specialist advocate, and that no specialist

advocate was available locally,

(b) the instructing providers were unable to find an advocate who was available and

prepared to work under the FAS.

Solicitors will need to justify the payment on the CLAIM 1A and Counsel should be able to

justify their instructions in the CLAIM 5 and should supply written reasons for instruction from

their instructing providers.

Representation of a client who is facing allegations that he or she has caused

significant harm to a child

This bolt-on is only available to the advocate representing the client against whom such

allegations are made and it applies only so long as those allegations remain a live issue in

the proceedings. If the allegations are no longer an issue that is being pursued by the local

authority or have been found against in a finding of fact hearing the bolt-on will no longer be

available for subsequent hearings. The client may either be the parent of a child who is the

subject of the proceedings or another person (including a child) against whom such

allegations are made. However, it is not available to advocates who may be representing

other parties in the same proceedings.

Although the bolt-on is available in private law children proceedings as well as public law

children proceedings, in public law proceedings it only applies if a local authority is making or

adopting the allegations against the client. It does not apply if the allegations are made by

other parties to the proceedings but not adopted by the local authority.

For the purposes of the bolt-on the following conditions constitute significant harm:

a) death,

b) significant head and/or fracture injuries;

c) burns or scalds,

d) fabricated illness,

e) extensive bruising involving more than one part of the body,

f) multiple injuries of different kinds ie three or more different types of injuries

g) other significant ill-treatment (such as suffocation or starvation) likely to endanger life,

and

h) sexual abuse

The test, therefore, of significant harm in this context is higher than that contained within the

Children Act 1989. For example, the threshold criteria in a care case may be met in terms of

the child suffering significant harm because of chronic neglect but this will not in itself satisfy

the test for the bolt-on.

Note

This bolt-on is payable in relation to children hearings only.

Representation of a person who has difficulty in giving instructions

This bolt-on is available in public law children cases only. It is not available in private law

children, finance or domestic abuse cases. The bolt-on is available to the advocate where:

a) their client has difficulty giving instructions or understanding advice

b) this is attributable to a mental disorder (as defined in section 1(2) of the Mental

Health Act 1983) or to a significant impairment of intelligence or social functioning; and

c) the client's condition is verified by a medical report from either a psychologist or

psychiatrist.

In order to be eligible for the bolt-on the client represented by the advocate will need to be

suffering from a diagnosed mental illness or impairment of intelligence or social functioning.

Whilst payment of the bolt-on is automatic, turning on representation of the client, it also

requires a medical diagnosis. A report from either a psychologist or psychiatrist should be

available for the Judge or Magistrate, prior to verification for that particular hearing.

Where the evidence of an independent expert witness is cross-examined and

substantially challenged by a party at a hearing

This bolt-on is available only in public and private law children cases. It is not available in

finance or domestic abuse cases. It applies only for hearings where the evidence of an

independent expert witness who is giving opinion evidence is cross-examined and

substantially challenged by any party. If the expert is cancelled 72 hours or less before the

hearing the bolt-on will be payable. An Independent Social Worker is an expert. Social

workers, Cafcass or CAFCASS Cymru guardians or employees of any party to the

proceedings do not count as independent expert witnesses for this purpose. Similarly, a

GP providing information as to medical care received would not be an expert witness for

these purposes.

The bolt-on only applies to the individual hearing at which the cross-examination takes place

and not to the proceedings in general, even if expert reports in the case are available. The

bolt-on will be payable to each advocate at the hearing where the cross-examination takes

place. It should be noted that this is a change from the expert SIP that was available under

the FGF.

Expert’s Cross-examination

The LSC has agreed that where a hearing is prepared for on the basis of cross-

examination of an expert and the evidence of the expert is agreed or the expert is not

required to give evidence the bolt-on will be payable.

Exceptional Payment - Court Bundle Payments

Additional payments can also be made according to the size of the court bundle. Court

bundle payments may not be claimed in domestic abuse proceedings but may be claimed in

public and private law children cases and in finance matters.

For interim hearings, if the bundle comprises 350 to 700 pages a court bundle payment 1

(CBP1) may be made, and if the bundle is over 700 pages a court bundle payment 2 (CPB2)

may be claimed. In Private Law Proceedings, court bundle payments may only be claimed at

one interim hearing per case. For this purpose the Children and Finance aspects of a case

will be treated separately. In public law proceedings court bundle payments may be claimed

for no more than two interim hearings, and each of these must be either a Case

Management Conference, an Issues Resolution Hearing or otherwise a hearing that is listed

for the hearing of contested evidence.

For final hearings only, a higher CPB3 payment is available if the bundle is in excess of

1400 pages.

The Family Practice Direction: 10 March 2000 prescribes the format of the bundle for the

main hearing. It covers all family proceedings in the High Court or heard in the Royal Courts

of Justice or cases of an estimate of more than ½ day in all care centres, family hearing

centres and divorce county courts.

The Practice Direction only covers preparation for the main hearing. For other family

hearings, if there is a court bundle it should contain such documents as are reasonably

necessary for that type of hearing; e.g., application, statements/affidavits, expert reports and

other documents.

The definition of court bundle for the purposes of the payment only includes the court bundle

that is substantially considered by the court. It does not include any additional bundles, such

as the library bundle that is filed in the event that further information may be required, nor

does it include the pages of an advocate's brief.

An advocate must obtain certification of the relevant number of pages of court bundle on the

Advocates Attendance Form in order to claim this payment.

Note

In both children and finance cases there are bolt-on payments where the Court bundles

are substantial. These payments are not payable in Domestic Abuse Proceedings.

There are different levels of payment for interim hearings and final hearings. The amount

of the bolt-on depends on the volume of documentation within the bundles. If the Court

bundles are less than 350 pages no bolt-on may be claimed. For interim hearings the

bolt-ons relate to Court bundles of 350 pages to 700 pages and 701 pages to 1400 pages.

For final hearings the same thresholds apply, but in addition there is higher bolt-on where

the Court bundles exceed 1400 pages. Only up to two claims may be made at interim

hearing level.

Guidance

At first glance the amounts of the bolt-ons appear to be identical for Private Law and

Public Law children cases. However, do note that the percentage for expert cross-

examination in public law cases is 25% and in private law cases 20%.

Matters Specific To Public Law Proceedings Advocacy

The provisions relating to the “Family Advocacy Scheme in Public Law Proceedings” are

similar to those in Private Law Family Proceedings. Here there are two categories of case:

1. Proceedings or potential proceedings under section 31 of the Children Act 1989 (this

includes related cases such as applications for contact made within the section 31

proceedings; and

2. Any Public Law Work other than s31 Care Proceedings (Other Public Law Children

cases for the purposes of the FAS includes applications for a child assessment order,

an emergency protection order, a secure accommodation order, other proceedings

under Parts IV & V of the Children Act 1989, adoption proceedings and proceedings

under the inherent jurisdiction of the High Court in relation to children).

There are different levels of fee depending upon the Court where the advocacy took place.

At the lowest there is the fee payable for the Family Proceedings Court, in the middle the fee

payable for the County Court and at the highest the fee payable for the High Court. The

units are the same as relate to Private Law Family Proceedings. Similarly the same

provisions apply in relation to conferences and opinions.

Standard Fees at Level 3 in Public Law Family Proceedings

Care Proceedings/Supervision Proceedings

Essentially there is no change here. However, the reduced standard fees must be noted.

The standard fees are reduced to reflect elements of preparation for advocacy that were

included in the earlier standard fees. The reductions could have been worse. The

reductions do make it easier to escape.

Warning

Time spent in preparation for hearings and meetings of advocates must now be recorded

separately and not recorded so that the time might be wrongly claimed to assist a case to

escape.

Escapes

I would emphasise that the mechanisms for escape in Public Law Family Proceedings has

not changed. The escape is two times the standard fee applicable. The fee is determined

by reference to the region, type of court where the case concluded, the type of party

represented and the number of parties represented.

Exclusions

The case exclusions recorded earlier apply equally to Public Family Law Proceedings.

Non-Care/Supervision Proceedings

Guidance

Standard fees do not apply to these types of cases. These include costs under stand

alone certificates in relation to children in care, discharge of care orders, emergency

protection orders, secure accommodation orders, adoption, placement and guardianship

orders.

Costs are calculated at the prescribed rates.

For the avoidance of doubt “FAS” advocacy fees do apply to these cases.

Additional Issues The Statutory Charge In Private Law Family Proceedings the charge will be based on the actual costs to the fund, not just to the costs of the case where the recovery or preservation occurred. Funded Clients will not be able to argue that the standard fees actually represent higher payments than they would have made by the conventional basis of charging by hourly rates.

Warning

The charge applies to the outlay of the CLS Fund. It is not restricted to the case where the recovery occurred. When suppliers act for a Funded Client in relation to a financial case and domestic abuse/ children case thought will need to be given as to alternative ways of resolving the new matters.

Warning

Funded clients may have a liability for the costs of the provider: 1. Where the statutory charge applies; and 2. Where their funding certificate is revoked. Clients must be informed that they may be liable for fixed fees and should be warned of the amounts of those fees. The Solicitors’ Code of Conduct applies: “2.03 Information about the cost (1) You must give your client the best information possible about the likely overall cost of a matter both at the outset and, when appropriate, as the matter progresses. In particular you must: (a) advise the client of the basis and terms of your charges; (b) advise the client if charging rates are to be increased; (c) advise the client of likely payments which you or your client may need to make to others;”

Costs Statements In finance cases parties are required to file and serve costs estimates and statements before each hearing.

Warning

In preparing Form H providers must ensure that the form correctly claims the standard fees that will be claimed under “PFLRS” and “FAS”. Care will be required to ensure that the fees reflect all bolt-ons that may be claimed. If it is expected that a case will become exceptional Form H must be completed correctly to reflect that.

Final Bills Paragraph 6.12 of the Response to the Consultation records:

“A claim submission similar to the CLS Claim 1A (or the CPGFS) will need to be submitted. It will enable providers to give details of each fixed fee element that they are claiming together with any disbursements. Note that only costs incurred since the last interim bill, if applicable, will need to be submitted”.

Assessments The guidance provides:

“By paragraph 6.13 of the Response to the Consultation the process as to who will assess bills and which bills are assessed will be finalised once the scheme has been finalised. It has been said that the process is being considered with Her Majesty’s Court Service and other relevant stakeholders.”

In fact, the LSC has now confirmed that the existing Costs Assessment Guidance will apply in the future.

Guidance - Bills of Costs

In relation to pre-15 November 2010 cases where a standard fee applies, but the advocacy costs exceed the LSC jurisdiction for assessments, the standard fee should be recorded in the bill although detail is not required. For post 15 November 2010 cases, if a case escapes from the standard fee regime the advocacy costs under “FAS”must be shown in the bill even though they will not be the subject of assessment by the Court. This is required to demonstrate that the costs exceed the LSC jurisdiction and also to ensure that costs limitations are not exceeded.

Disbursements Proper disbursements are claimable in addition to any standard fees. This will include proper travelling expenses. By way of reminder components of the overheads of a provider cannot be claimed as a disbursement. The guidance provides:

“Disbursements 17. Disbursements are not included in FAS and may be claimed in addition to payments made under the scheme. 18. Where it is reasonable for the advocate to incur travel or hotel expenses these may also be claimed. Payment for travel expenses is paid at a mileage rate of 45 pence per mile or at the cheapest second class train fare where available. The question of mode of transport travel depends on comparative costs, taking into account the fares incurred 19. Whether it was reasonable to travel by car rather than public transport should be considered in the context of reasonable convenience and the savings of the claim for travelling expenses that may have resulted. The question of mode of travel depends on comparative costs, taking into account the fares incurred and the time saved by use of the more expensive mode of transport. 20. If a distant advocate is instructed to attend, and it would have been reasonable to instruct an advocate more locally, the travel costs incurred may be reduced to those that would have been incurred by the more local Counsel 21. Hotel expenses may also be paid depending on the area where the hotel is situated as set out in the Costs Assessment Guidance.”

Claims/Payment The guidance provides:

“1. Solicitors will claim payments under the FAS in the same way as other claims for payment including those under the PLFRS and CPGFS. This includes claims for payments on account and for final payments, which will be made on a CLAIM 1A. 2. No payment on account may be claimed in relation to services provided by Counsel under the FAS. Instead Counsel may apply to the LSC on a CLAIM 5 for payment under the scheme once the relevant hearing or other item of work is concluded. 3. For all hearings the advocate will be required to submit an Advocates Attendance Form signed by the magistrate or judge, confirming the bolt-ons that are to be claimed and the length of the hearing. In addition, where an early settlement fee is claimed a copy of the consent order should be provided with the claim. Advocates generally should be prepared to supply such documentation as the Commission may request to justify the particular work done. 4. Paragraph 7.167 of the Family Specification obliges solicitors to provide Counsel with all information necessary to claim the appropriate payment due under FAS. Under paragraph 5.28 of the 2010 Civil Contract Specification all instructions delivered to Counsel must

a) Include a copy of the current certificate, where available; b) Include a copy of any prior authority to instruct Counsel;

c) Be endorsed with the certificate reference number, where available. 5. Where the certificate has not yet been issued at the point that instructions are delivered to Counsel, a copy must be provided to Counsel within 14 days of receiving it. Where the solicitor delays in complying with that obligation, Counsel should inform the Commission's contracting team at the relevant regional office. 6. All claims for additional payment including bolt-ons and any incidental disbursements must be made at the same time as the claim for the advocacy service. If not claimed any later claim will be rejected.”

Advocates Attendance Form

This form will need to be signed by the judge or magistrate. When on-line billing becomes compulsory the form will have to be scanned by the provider and submitted with the claim form. If all that is claimed is a one hearing unit fee this form does not need to be completed.

Guidance

Claims for standard fees for preparation costs and for advocacy by in-house advocates cannot be made until the conclusion of the matter. They may make claims for payment on account for both preparation standard fees and advocacy. Counsel/sel-employed advocates may make claims as the case proceeds. Solicitors will not receive final payment until all fee claims of counsel/self-employed advocates have been received.

Assessment of Costs The guidance provides:

“The Commission's Role on assessment 1. The 2010 Contract governs payment of provider's costs for family work. Costs assessment is explained more generally in section E of Volume 2 of the Legal Services Commission Manual. 2. The Commission will initially assess all fees due to Counsel under the FAS whilst the conducting provider's profit costs and disbursements will be assessed in the usual way, through assessment by either the Commission or the Court. 3. The assessor will consider the following matters: a) whether Counsel was instructed appropriately or used excessively; b) whether the provider was over-reliant on Counsel; c) whether Counsel acted in accordance with his or her instructions or the certificate; d) whether the correct fee was applied for; e) whether the criteria have been met for any additional payments; f) the reasonableness of any incidental expenses claimed; g) whether Counsel has submitted the correct date for which he or she received instructions to carry out the relevant work. 4. This is not an exhaustive list of all considerations of the issue of what sums are properly and reasonably due to Counsel under the FAS for work carried out within the scope of the certificate. 5. Where Queen's Counsel, acting as such, is instructed without authority, Counsel's fees will be disallowed entirely. If multiple Counsel are instructed without authority, work done by the second Counsel is outside the scope of the certificate and the fees and any associated costs will be disallowed. 6. Counsel has a duty to check the limitations placed on a certificate both as to

scope and costs to be incurred. Paragraph 6.66 of the 2010 Standard Civil Contract Specification ensures that Counsel is only penalised where Counsel's fee itself exceeds the costs limitation imposed. In other circumstances, the excess is deducted from the conducting solicitor and ensures payment to both Counsel and experts. 7 Appeals If the solicitor or Counsel are dissatisfied with any decision of the director as to the assessment of the costs under the FAS they may appeal to an Independent Costs Assessor ("the Assessor") as set out in detail in paragraphs 6.68 to 6.87 of the 2010 Standard Civil Contract Specification.”

Detailed Assessment Advocacy

It has been agreed that the costs associated with a detailed hearing are not part of the standard fee regime. The cost of bill preparation is. The cost of attending at a detailed assessment hearing and preparing for it will be paid at the prescribed hourly rates. If it is appropriate for such costs to be claimed in a Claim 1A the bill page should be completed in the conventional way.

Funding Certificates Funding certificates will continue to be issued in the same form as they are now. One certificate may cover one or more cases.

Warning

Costs Limitations Where a funding certificate covers more than one case and there is a separate costs limitation for each case for the purposes of the overall costs limitation the highest costs limitation will continue to apply. For example, where there is a costs limitation for ancillary relief of £5,000.00 and a costs limitation for contact of £2,500.00, if the costs of work done as to contact are £3,000.00 and the work done as to ancillary relief are £2,000.00 the full £5,000.00 costs will be payable. However, it is expected that once DT comes in each costs limitation will be treated separately.

Working Examples

In this section I provide examples of escape mechanisms from standard fees. Private Law Family Proceedings Domestic Abuse Case - Non-London - Other Court - Standard fee £563

Item Rate No./hours Costs

Letters written £6.00 40 £240.00

Letters received £3.00 30 £90.00

Telephone calls £6.00 30 £180.00

Attendance time £61.00 5 £305.00

Preparation time £61.00 8 £488.00

Hearings attended with advocate

£36.00 5 £180.00

Conferences with advocate

£36.00 3 £108.00

Travelling time £31.00 2 £62.00

Waiting time £31.00 2 £62.00

Photocopying (Why not?)

£0.10 501 £50.10

Bill preparation time £61.00 1.5 £91.50

Total £1,856.60

Has the case escaped?

Standard fee Actual Costs Multiplier Escape Result - Plus or minus

£563.00 £1,865.60 3 £1,689.00

£176.60

The case has just escaped and a claim may be made on the basis of hourly rates. In the event that the costs are allowed as claimed a profit of £1302.60 beyond the standard fee will be achieved. Public Law Family Proceedings Care proceedings - North - Other Court - Child - Acting for one -Standard fee £1775

Item Rate No./hours Costs

Letters written £4.10 100 £410.00

Letters received £2.05 50 £102.50

Telephone calls £4.10 100 £410.00

Attendance time £64.90 5 £324.50

Preparation time £64.90 14 £908.60

Hearings attended with advocate

£36.00 5 £180.00

Conferences with advocate

£36.00 3 £108.00

Travelling time £31.00 2 £62.00

Waiting time £31.00 2 £62.00

Photocopying (Why not?)

£0.10 501 £50.10

Bill preparation time £64.90 3 £194.70

Total £2,812.40

Has the case escaped?

Standard fee Actual Costs Multiplier Escape Result - Plus or minus

£1,775.00 £2,812.40 2 £3,550.00 (£737.60)

The case has failed to escape and the claim will be restricted to a standard fee of £1775. The loss made is £1,307.40.

Guidance on Completing the Form CLS CLAIM 1A Important

From 15 November 2010 the CLAIM 1A form From October should be used for all cases including cases started before October.

Note

Where there are separate cases there must be a separate claim for costs for each case. There are two options: 1. One The CLAIM 1A with the first two pages being completed, but then separate claim pages for each case added. 2. Alternatively, the LSC has no objection to separate CLAIM 1A forms being submitted for every case.

Note

Firms of solicitors will not be able to make claims for the cost of advocacy until the case is concluded.

Unless the CLS Claim 1A is being submitted to claim costs assessed by the Court the first box relating to assessment by the LSC, at page 1, should have a crossed. The type of case needs to be inserted. This should be apparent from the second page of the funding certificate

The CLS reference number should be inserted. This can be found in the front sheet of the CLS Funding Certificate.

Next comes the details of the client. These can be taken from the application for public funding, CLS Claim 4 or any application to amend the funding certificate. You will need to include the title of the client, first name , surname of the client and the date of birth of the client.

The next section at page 1 to be completed is answering the question whether the certificate covered more than one funded client. On occasions solicitors act for multiple clients in

relation to the same matter. This could be husband and wife or acting for more than one child. In such situations you should provide the name and record the reference number of the second funded client and explain how the costs are to be apportioned. More often than not it will simply be an equal division of costs and that is all you need to say.

The next section to complete is that relating to supplier. The Legal Aid Account Number of the firm of solicitors goes in first. Then the roll number of the solicitor. This information can be obtained from the application for public funding, from an application to amend the funding certificate or from an application to discharge the certificate. Should these documents not have the roll number the information can be obtained in the directory of solicitors on the Law Society website by searching under the name of the individual solicitor..The next item to go in here is the name of the firm. That is the name of the provider’s practice. The reference of the solicitor is then inserted. You can take this from the instructions to you or from the last correspondence. The contact name for enquiries needs to go in next. This is the name of the representative of the solicitor who should be contacted by the LSC if there is a query.

The next section requires more attention. This relates to the answers to questions regarding pre certificate funding where this funding has been by the LSC. If there was no claim under Legal Help or there is to be no such claim the answer is obvious. If a claim has been submitted you will need to locate the final page of the Legal Help form and transfer across the date of the claim and the total amount claimed to the LSC Claim 1A form.

The next section also requires care. The question asks

“Are there any further claims to be made (by you or any other Provider)under this or any related certificate?” Answering this is easy, however being careless here can be equally easy and costly if a mistake is made.

The second page requires details about the case. First the date when proceedings were issued. You should check the application or other originating process.

The next section is important. Here the LSC requires the supplier to explain what happened in the case and what the outcome was. Here you will need to look at the guidance given by the LSC on outcome codes. The LSC places importance on receiving data for future use. Performance indicators are relevant here.

The next section on page 2 relates to time limits. If the claim is submitted out of time careful completion of this section is important. The date from which the time limit for commencing the assessment proceedings should be inserted. If there were good reasons why the claim is out of time these should be explained in sufficient detail to ensure that the instructing solicitor does not suffer a penalty. Watch out for situations where solicitors have mistakenly secured the discharge of a funding certificate from a date earlier than they should have done by carelessly recording the date of the last hearing, rather than the date of the last required work on the file.

The sections on recovery also require care. It should be apparent from the file whether there has been costs, damages or property recovery. An accurate answer to the questions is important.

Hopefully you will not come across the situation where a wasted costs order has been made against your instructing solicitor. If it has this must be declared to the LSC.

The name of the Court should then be inserted. This will be the name of the Court where the case finished. If proceedings were intended and not issued you will need to identify the type of Court in which the proceedings would have been undertaken.

The third page covers the “The Nature of the Proceedings”. It requires detail to be given about the case and factors material as to the work done. Here you need to provide sufficient, but not overly long information about the issues involved in the case, the work that was required and any special features.

Note

If there is more than one private law aspect on the certificate subject to a fixed fee e.g. children and finance to be claimed you should complete page 3 onwards for each case claimed. In other words pages 3 onwards have to be prepared separately for every case claimed. Or Separate CLAIM 1 A forms for each.

It is then necessary to identify the type of case for which the costs are claimed. That could be care proceedings, finance etc.

You are then required to state whether any other providers acted in the matter and reminded that a separate claim must be submitted?

You must then state whether or not is a claim for a half fee because of change of solicitor.

The next section applies where the case involved care or supervision proceedings. The actual core costs for preparation excluding enhancement must be recorded with the VAT thereon. The questions that determine the applicable standard fee are then answered:

$ Region

$ Type of client

$ How many clients

$ Type of court where the case finished.

The next section on page 4 should be completed if the case involved private family law proceedings. The actual core costs for preparation excluding enhancement must be recorded with the VAT thereon. The questions that determine the applicable standard fees are then answered. These cover:

$ The region where the provider practices (London or non-London)

$ Whether an earlier payment on account of costs has been made

$ The type of court where the case finished

$ Whether a settlement fee is being claimed

$ The levels of work undertaken by the provider for which claims for standard fees are being made

The next question can only be answered after a full costing of the file. The question is “Is this an Exceptional Case?” In simple terms has the case escaped from being a standard fee by the preparation costs being 3x the standard fee in private law at all levels and public law family proceedings at levels 1 and 2 or 2x the standard fee for public law family proceedings at level 3. If the case has escaped the rest of this page is ignored. If it has not the data has to be entered. In effect this is a summary of the total costs, experts’ fees, disbursements and advocacy fees claimed.

Page 5 requires a breakdown of counsels’ fees, fees of experts and disbursements.

The first section relates to fees of counsel. The first question is “Have all outstanding claims for counsel been paid by the LSC?” Note that the CLAIM1A should not be submitted until confirmation has been received that counsel has been paid. It is necessary to show the fees of each counsel separately, if more than one was instructed. The Legal Aid account number of each should be recorded and the total fees including VAT of each.

The next section is tricky and some may consider unnecessarily bureaucratic. It requires a very detailed breakdown of the fees of experts. This data should be available from the fee note of the expert or requested from the expert.

The final section on this page relates to claims for other disbursements. This will include fees

of interpreters, fees for medical records, travelling expenses etc. Do note that certain disbursements, although the person providing services to the solicitor was not VAT registered, attract VAT as the supply was by the provider. This will usually be fees of interpreters.

The next page is where the advocacy claims by solicitors are made. There is then a table with 13 columns to be completed.

The columns relate to:

1. Date of hearing.

2. Level of Court.

3. Interim/final advocates meeting or FDR.

4. Actual time spent (minutes).

5. Number of hearing units or days if final hearing.

6. Rate for units.

7. Standard fee total costs.

8. Percentage bolt-on claim.

9. Cost of bolt-ons.

10. Court bundle payment.

11. Settlement fee.

12. Exceptional travel.

13. Total.

Date of Hearing

Where hearings last more than one day the date to be included is the first day on which the hearing was listed.

Level of the Court

This is the Court where the proceedings took place. This is important because different fees are payable for the different Courts. The codes that are required are:

“HC” High Court

“CC” County Court

“FPC” Family Proceedings Court

Type of Hearing

Here it is necessary to state the nature of the hearing. It could be an interim hearing, final hearing, an advocates meeting (AM) or a financial dispute resolution hearing (FDR).

Actual Time Spent

The intention here said to be to assist the Claimant to work out the correct number of units to be claimed for each hearing. The Claimant should record, in minutes the amount of time between the listing time of a hearing and when the advocates left the Court room. This also needs to be recorded for final hearings.

Here it is going to be so important to ensure that where negotiations at Court are required by the Court that the Courts list matters earlier than the actual hearing to reflect this.

If a hearing it stood down for an order to be drafted it may work to the assistance of the advocate to go back before the Court to get the order approved rather than simply leave the order with the Usher to put before the Judge. The end time is the time when the advocates finally, leave the Court room.

Number of Hearing Units

Here it is necessary to record the number of hearing units claimed. The example given by the LSC is, if two Hearing Unit 2s are claimed the number in this column will be 2. Do note claims may not be doubled up to claim more than one unit. For example Units 1 and 2 cannot be claimed together. If a hearing lasts in excess of 1 hour then either one or more Hearing Unit 2 will be claimed.

Where the hearing was a final hearing the number of days should be inserted.

Rate for the Unit

This is the rate applicable as set out in the table for the appropriate type of case and Court.

Standard Fee Total Cost

This is the total cost for the hearings or advocates meeting. It is worked out by multiplying the rate appropriate by the number of units.

The Next section on page 6 covers the claims for bolt-ons under “FAS”.

The first section requires the dates of the hearings where claims are made to be recorded and then the bolt-ons claimed and the multiple.

Cost of Bolt-Ons

This is the actual amount claimed being the fee multiplied by the percentage appropriate. Here the Advocacy Attendance Form is going to be crucial.

The next section covers exceptional travel. This is the fee payable as set out in the table. The amount is fixed and there is no flexibility. All the more reason not to be an advocate in a Court a long way from the office of the advocate. Do, however, note that the exceptional travel claim can be made for every day at Court. If the case involved a four day hearing four x the fee would be payable. Exceptional travel may be claimed for hearings, advocates’ meetings and conferences. Note the requirement to explain why this vast payment from public funds is justified. Providers may wish to consider options other than face to face meetings of advocates and telephone hearings.

Section 5 at page 7 must be completed where a case escapes from the standard fee regime. Sufficient detail of the case and the work done must be included. In this page you will also need to explain any enhancements sought, with details of the fee earners for whom enhancements are claimed and their panel memberships. An explanation should be given in sufficient detail to justify the levels of non-automatic enhancement claimed.

Page 8 is completed where a case escapes from the standard fee regime. This can only be done adequately after the file has been fully costed. The data from costing sheets is transferred in to this page of the form. Be careful that you charge the correct rates. You will need access to tables of the rates that applied when the work was done. Be careful also to ensure that panel membership enhancement is claimed accurately and not for non-panel members. Assess levels of non automatic enhancement at realistic and not exaggerated levels.

Page 9 of the CLS Claim 1A requires you then to provide an explanation for all of the chargeable items at page 8 where the work was fairly routine and the time fairly nominal.

The detail that needs to be provided should be minimal. Where the times involved are significant there must be sufficient detail to justify the time claimed. It is better for the case

worker to be satisfied from perusal of the form that the time claimed is reasonable than to require him or her to have to examine the file of the solicitor.

The next section on page 9 requires the total number of routine communications including letters written, letters received, emails and texts made, emails and texts received and routine telephone calls to be inserted with the rate applicable, enhancement claimed on such items and the total costs for each.

The final section on page 9 is completed where a case escapes. It is a summary of:

$ Profit costs claimed

$ Experts’ fees

$ Other disbursements

$ Counsels’ fees

It is concluded with the columns being totalled.

The following pages are further administrative forms that are completed from the information on file particularly dealing with costs recovery where inter partes costs orders were made or whether statutory charge applies and damages may be payable. Completion of these is not always easy and in many instances it may be necessary for further enquiries to be made before the form is fully finished.

Finally the CLS Claim 1A should be checked. Ask yourself is it accurate? Are the costs reasonable? Is there anything missing?

Guidance on Completing the Advocate Attendance Form

This form must be completed by a advocate and signed by a Judge or Magistrate if payments beyond the one hearing unit fee are claimed. If this form is not fully completed and signed the advocate will only be entitled to the one hearing unit fee. The sections for every bolt-on must be completed. The form is straight forward and completing it should not prove difficult. In the early stages of the new regime explanations to Judges and Magistrates of the procedures and requirements may be required.

How the form is completed

The first step is to complete the box appropriate to the type of Court. This could be High Court, County Court or Family Proceedings Court.

The case number is then inserted.

The box for the appropriate case type is then completed. The form makes provision for domestic abuse, care, other public law cases, private law children cases and ancillary relief.

The next part of the administrative section of the form is to indicate the type of hearing. This could be an interim hearing, Financial Dispute Resolution, Final Hearing, Interim Resolution Hearing or a Finding of Fact hearing.

The name of the advocate should then be inserted. It might be helpful to also include the name of the firm if the Advocate is employed by a firm.

The name of the client then has to be included.

Next the LSC certificate number is inserted.

Having regard to additional fees payable where a case settles at FDR or IRH the appropriate box has to be completed to enable the appropriate fee to be allowed.

The date of the hearing then goes in.

If the hearing lasts more than a day the concluding date of the hearing is inserted.

To enable more than the one hearing unit fee to be claimed the start time of the hearing or the time when the advocate was required to be at Court should be inserted. Where papers were issued for an ex parte application that will be the start time rather than the start time of the hearing - there can be substantial waiting time.

Warning

Don’t hang around court waiting for the order to be typed up. You will not get paid for this advocacy. Get the office junior to collect the order or if a process server is competent to check that an order is correct get him to collect the order.

The final administrative part of the form is to indicate the number of days of the hearings if the hearing lasted more than one day.

The next stage of the form completion is down to the Judge or Magistrate. Here he is effectively giving authority for something more than the one hearing unit fee to be claimed and for bolt-on payments to be claimed.

The boxes for bolt-on payments for public law children proceedings have to be completed. These cover representation of a client who was facing allegations that they caused significant harm to a child, representation of a person who had difficulty in giving instructions or understanding advice and for evidence of an independent expert witness being cross examined and substantially challenged by a party at the hearing.

Warning

Where there is preparation for cross examination of the expert and his evidence is agreed in advance of the hearing advocates must not forget to bring this to the attention of the Judge or Magistrate when completing the Advocate Attendance Form.

There are then boxes to be completed for the bolt-on payments for private law children cases where the client faced allegations that they caused significant harm to a child and for cross examination of independent expert witness.

Note

There no provision in private law children cases for a bolt-on payment for representation of the client who had difficulty in giving instructions or understanding advice.

The next bolt-on payments boxes need to be completed where there are additional payments for substantial Court bundles. The first one covers bundles of 350 pages and 700 pages, the second 700 pages plus and the final one 1400 plages plus. (Note that the final one can only be claimed for final hearings).

The Judge or Magistrate must sign, date, incorporate his name in the certificate and provide his judicial title.

For counsel and self-employed independent advocates the form should be submitted with the CLS Claim 5A.

Where the advocate is an employee of a supplier firm the form should be submitted together with any additional similar forms with the Claim 1A at the conclusion of the case.

Warning

Without the Advocates attendance form being submitted to the LSC with a claim for payment the advocate will only receive a one hearing unit fee and no bolt-ons.

Guidance on Completing the Form CLS CLAIM 5A (Counsel and Self-employed advocates only)

How many claim forms should be submitted?

Only one claim form should be submitted for each activity. Only one fee will be payable, for example, even if representing more than one client at a hearing

Where counsel did the work the form may be used for claiming more than one activity.

The Form Itself

The starting point is the detail of the client.

The title, first name and surname are included. There then follows the date of birth of the client.

There then follows the reference number.

Multiple Clients

Where more than one client was represented the details of each and the case reference number must be included.

Counsel

If counsel was instructed the next section requires counsel to put in his name, account number, address, contact details, the party that instructed him and the name of the organisation that instructed him.

Description of Main Issues in the Case

This section requires the following to be included:

1. The name of the Court.

2. The nature of the application or applications before the Court.

3. The listing times where applicable.

4. The time spent at the hearing. The starting and finishing times should be endorsed on the Advocates Attendance Form.

5. If a claim for travel or overnight accommodation is made justification for his must be provided.

Schedule of Payments Claimed

The category of case must be ticked.

There is then a table with 13 columns to be completed.

The columns relate to:

1. Date of hearing.

2. Level of Court.

3. Interim/final advocates meeting or FDR.

4. Actual time spent (minutes).

5. Number of hearing units or days if final hearing.

6. Rate for units.

7. Standard fee total costs.

8. Percentage bolt-on claim.

9. Cost of bolt-ons.

10. Court bundle payment.

11. Settlement fee.

12. Exceptional travel.

13. Total.

Date of Hearing

Where hearings last more than one day the date to be included is the first day on which the hearing was listed.

Level of the Court

This is the Court where the proceedings took place. This is important because different fees are payable for the different Courts. The codes that are required are:

“HC” High Court

“CC” County Court

“FPC” Family Proceedings Court

Type of Hearing

Here it is necessary to state the nature of the hearing. It could be an interim hearing, final hearing, an advocates meeting (AM) or a financial dispute resolution hearing (FDR).

Actual Time Spent

The intention here said to be to assist the Claimant to work out the correct number of units to be claimed for each hearing. The Claimant should record, in minutes the amount of time between the listing time of a hearing and when the advocates left the Court room. This also needs to be recorded for final hearings.

Here it is going to be so important to ensure that where negotiations at Court are required by the Court that the Courts list matters earlier than the actual hearing to reflect this.

If a hearing it stood down for an order to be drafted it may work to the assistance of the advocate to go back before the Court to get the order approved rather than simply leave the order with the Usher to put before the Judge. The end time is the time when the advocates finally, leave the Court room.

Number of Hearing Units

Here it is necessary to record the number of hearing units claimed. The example given by the LSC is, if two Hearing Unit 2s are claimed the number in this column will be 2. Do note claims may not be doubled up to claim more than one unit. For example Units 1 and 2 cannot be claimed together. If a hearing lasts in excess of 1 hour then either one or more Hearing Unit 2 will be claimed.

Where the hearing was a final hearing the number of days should be inserted.

Rate for the Unit

This is the rate applicable as set out in the table for the appropriate type of case and Court.

Standard Fee Total Cost

This is the total cost for the hearings or advocates meeting. It is worked out by multiplying the rate appropriate by the number of units.

% Bolt-On Claimed

The example given is where claims could be made for both expert examination and allegations made against the client in a public law case. The bolt-on would be 45% (25% and 20%).

Cost of Bolt-Ons

This is the actual amount claimed being the fee multiplied by the percentage appropriate.

Court Bundle Payment

This is the actual cost of any Court bundle payment that is claimed calculated in accordance with the fee appropriate.

Settlement Fee

By way of reminder this is only available in finance cases. It is the actual cost that is claimed here. The claim may only be made where the case has been fully concluded at the FDR Hearing and the advocate has materially assisted in the settlement. It must be recorded in the form of a consent order approved by the Court. A settlement fee is not available in connection with a claim for a conference or opinion,. The requirement for a consent order is particularly important

Exceptional Travel

This is the fee payable as set out in the table. The amount is fixed and there is no flexibility. All the more reason not to be an advocate in a Court a long way from the office of the advocate. Do, however, note that the exceptional travel claim can be made for every day at Court. If the case involved a four day hearing four x the fee would be payable. Exceptional travel may be claimed for hearings, advocates’ meetings and conferences.

Total

This is the total costs for each hearing.