Engaging with the Litigators’ Graduated Fees Scheme and Court Appointees consultation

I don’t expect to make friends with this short blog. It has rarely proved possible to attain a common position across the profession when faced with efforts from the Government to curb legal aid expenditure and a few words here is certainly not going to achieve it. I should say that I accept there should be proper funding of our criminal justice system and that cuts to publicly funded legal work elsewhere has had a devastating effect on access to justice for the most vulnerable. At the same time, we must take a principled position if we are to argue our case.

The approach to the Advocates’ fee is instructive. I recognise that many junior counsel are unhappy with it but both junior and senior counsel contributed to the argument whilst the Law Society walked away. The result is payments for early hearings (helpful to those juniors stepping in to help out), improved payments for sex cases (is there anything else?), better payments as you do more serious cases and an abandonment of the lottery of high PPE cases.

The Litigator fee consultation looks very different. The Government says that a) litigator fees have gone up £50m and this is because b) a series of costs decisions have added electronic service of large volumes of data to page counts which c) have inflated costs claims without reflecting the work actually done. Absorbing the loss of VHCC cases into the graduated fee scheme might account for some of it but the increase cannot be justified, says the Government.

In my view, there is no point in saying that’s the way it goes and they will have to keep paying it. The reality is that PPE is a poor proxy for the work that actually goes into cases. The advocates’ consultation recognises this and is consequently far more complex in its proposals. The answer to inflated litigator fees is apparently to cut the cap from 10,000 to 6,000.

Our reply has traditionally been to say “you pay us peanuts for the rest of what we do so you’ll have to continue paying us over the odds for this”. To my mind, a more reasoned approach is required. The public is best served by having solicitors with trial experience in the police station. It is also best served by having properly qualified lawyers preparing serious cases and representing people in the Magistrates’ court.  As the money has bled out of the police station and magistrates’ court, the profession has increasingly turned to less qualified people to keep a profit margin.

This consultation quotes the figure from the graduated litigator fee but fails to mention what’s been happening within contract work (police station and magistrates’ court). The answer is not to say that contract work is underpaid so we need a PPE lottery with crown court cases. It cannot be right that a small firm does a great job for its local clients throughout the year but is reliant on a decent page count in two cases each year to remain viable. We can negotiate a position whereby the money that is currently being paid in the crown court moves into contract work where the payments have collapsed. It has the attraction of being genuinely in the public good. Why not have an enhanced payment if you send a solicitor to the police station instead of a rep?

A final thought on the “Court Appointees”. It is not at all clear what “legal aid rates” are. Does it mean a fixed fee (as for a magistrates’ court trial) or does it mean an hourly rate? Either way, many people won’t do it. It is inconvenient, involves a defendant who is not your client, exposes the firm to all the risk of representing a regular client and provides little professional satisfaction. The only reason we do it is the money and I can promise you we will do no more of it if the fees are capped at legal aid rates. Different fights require different tactics.

David Osborne

February 2017



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