Civil Representation
CLA 1: Meaning of the limitation 'Limited to obtaining counsel's opinion
CLA 2: Allowance for checking a bill
CLA 3: Failure to report significant change
CLA 4: Inspection of original documents in clinical negligence cases
CLA 5: Rates allowance on assessment under regulation 105
CLA 6: Consideration of unusual or substantial papers
CLA 7: Solicitor considering medical records in clinical negligence cases
CLA 8: Enhancement of prescribed rates for membership of Law Society's children panel
CLA 9: Enhanced rates in Public Law Children Act cases
CLA 10: Non-contentious work to put into effect an order in family proceedings
CLA 11: Enhanced rates in family proceedings
CLA 12: Medico-Legal assistants as fee earners
CLA 13: Preparation of attendance notes
CLA14: Assisted person's travelling and other expenses
CLA 15: Preparation of annual report on case
CLA 16: Applications to the European Commission
CLA 18: Prescribed rates and non-contentious business
CLA 19: Assessment of authorised disbursements
CLA 20: Reasons for reduction in experts' fees
CLA 22: Review and supervision on a franchised file
CLA 23: Mediation in non-family proceedings
CLA 24: completion of application form for payment on account
CLA 25: Use of local solicitors agents
CLA 26: Whether indexing and pagination is fee-earner or adminiStrator work
CLA 34: Fee-earner time spent translating or interpreting
CLA 37: Burden and standard of proof on assessment
CLA39 Completing application form in public law children act work
CLA 40: Consequences of solicitor's failure to comply with regulations or contract
CLA 1: Meaning of the limitation 'limited to obtaining counsel's opinion
| Decision Number: | CLA 1 (Amended) |
| Date: | 4 September 1990 & 20 January 1997 |
| Office Reference Number: | 07/01/87/6807N - Civil & CA4/SWE/110550 |
POINT OF PRINCIPLE
A certificate bearing a limitation containing the words "Limited to obtaining counsel's opinion" covers the obtaining of one opinion only (which may follow a conference). Work undertaken by a solicitor to clarify a genuine ambiguity in the opinion itself could, however, be allowed. If, at the time of receipt of counsel's written opinion, counsel is not in a position to advise on the settling of proceedings, no further work can be carried out until the limitation is removed or amended to allow either a further written opinion from counsel or further work by the solicitor.
CLA 2: Allowance for checking a bill
| Decision Number: | CLA 2 (Amended) |
| Date: | 1 October 1990 & 23 November 1993 (amended by implication on c.i.f. of CPR |
| Office Reference Number: | 04/01/89/559Y - Civil & 04/01/88/17304D – Civil |
POINT OF PRINCIPLE
[Practice Direction No. 2 of 1992 (Direction 2 paragraph 1.17) states that the drawing of a bill of costs is not fee earner work and, save in exceptional circumstances, no charge should be sought for such work. However,] On an assessment to which Regulation 105 of the Civil Legal Aid (General) Regulations 1989 relates, where a claim is made for preparing the bill (and the case is not exceptional justifying such a payment), consideration should be given to making a small allowance which is for the solicitor's time in checking the bill, signing the Report on Case and complying with the other requirements of the Civil Legal Aid (General) Regulations 1989 and the Legal Aid Board generally. Normally an allowance of 10-20 minutes would be appropriate for cases within Regulation 105(3)(a) of the Civil Legal Aid (General) Regulations 1989 although a higher allowance may be appropriate for more complex cases.
CLA 3: Failure to report significant change
| Decision Number | CLA 3 |
| Date: | 1 October 1990 |
| Office Reference Number | 07/01/89/23205A - Civil |
POINT OF PRINCIPLE
If a solicitor fails to report a significant change, which is known to him, in either the circumstances of the assisted person or the case, costs subsequently incurred may be considered not to have been reasonably incurred and may be disallowed.
CLA 4: Inspection of original documents in clinical negligence cases
| Decision Number | CLA 4 |
| Date: | 3 December 1990 |
| Office Reference Number: | 07/01/87/25673V - Civil |
POINT OF PRINCIPLE
When assessing the merits of possible medical negligence proceedings, it would not be reasonable for a solicitor to inspect the original records as a matter of course but where a solicitor has reason to believe that the copy records supplied are incomplete or inaccurate it would be reasonable for him to inspect the originals. Where cases fall within this principle, a certificate limited to obtaining or perusing medical records will cover inspection of original records.
CLA 5: Rates allowance on assessment under regulation 105
| Decision Number | CLA 5 |
| Date: | 9 July 1991 & 23 September 1996 |
| Office Reference Number: | 07/01/88/50022G - Civil & CA4/DEL/109666 |
POINT OF PRINCIPLE
Costs assessed under Regulation 105 of the Civil Legal Aid (General) Regulations 1989 should be assessed to ensure that the costs allowed are those which would, not should, be allowed on a taxation on the standard basis under rules of court. The rates which would be allowed are those which are being allowed in the court where the litigation was or most likely would have been issued and conducted. The expense rate chargeable will be the broad average direct cost of doing the work as allowed by the local taxing officer or District Judge. Regard may be had to the local Law Society survey on expense rates to determine the broad average direct cost. In areas where the survey expresses an hourly rate by one single composite figure, this is only an average figure. The seniority and expertise required by the particular case will be relevant to the hourly rate allowed to reflect the true broad average direct cost of the case.
CLA6: Consideration of unusual or substantial papers
| Decision Number | CLA 6 |
| Date: | 19 November 1991 |
| Office Reference Number | 07/01/88/11505Q - Civil |
POINT OF PRINCIPLE
Where claims for costs are made for perusal of unusual or substantial papers, and the assessor or area committee is minded to disallow those costs in whole or in part, it will normally be necessary for the papers in question to be considered.
CLA 7: Solicitor considering medical records in clinical negligence cases
| Decision Number: | CLA 7 |
| Date: | 27 April 1992 |
| Office Reference Number: | 05/01/89/12876H – Civil |
POINT OF PRINCIPLE
It is reasonable in medical negligence cases for the assisted person's solicitor to consider in detail copies of the medical records relevant to the issues in the case.
Guidance
1. The Costs Appeals Committee's decision was that it is reasonable in medical negligence cases for the assisted person's solicitor to consider in detail copies of the medical records relevant to the issues in the case.
2. The difficulty is in determining which medical records are relevant. It is accepted that a brief and quick perusal of the medical records may be necessary in order to identify which records are relevant. Having done that, the solicitor should be able to consider in detail only those which are relevant. It would not be reasonable to allow the solicitor to have carte blanche to consider in detail all medical records regardless of whether or not they are relevant. On the other hand it must be acknowledged that some limited amount of time is required to briefly peruse the records to ascertain which are relevant and which are not, and some limited payment should be allowed for doing that.
CLA 8: Enhancement of prescribed rates for membership of law society's children panel
| Decision Number: | CLA 8 |
| Date: | 26 October 1992 & 23 September 1996 |
| Office Reference Number: | 05/01/92/15735, 05/01/91/24235W, 05/01/91/21194Q & CA4/DEL/109666 - Civil |
POINT OF PRINCIPLE
Membership of the Law Society's Children Panel is itself an exceptional circumstance under Regulation 3(4)(c)(iii) of the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 which gives a discretion to the assessing officer to allow a larger amount than that specified where it appears to him to be reasonable to do so in any particular part of the bill of costs in question.
As a general rule, where a solicitor appeared as an advocate, this is not an exceptional circumstance. Where, however, a Children Panel solicitor appeared as an advocate in care proceedings, this will be an exceptional circumstance. Whether this justifies of itself allowance of a "larger amount" is a question for the exercise of discretion, in consideration of all the circumstances of the case. An uplift in hourly rate for panel membership in cases properly lasting more than two days would normally be justified.
CLA 9: Enhanced rates in Public Law Children Act cases
| Decision Number: | CLA 9 (Amended) |
| Date: | 10 May 1993 & 23 September 1996 |
| Office Reference Number: | CA4/DEL/109666 - 11/01/91/1111A, 11/01/91/31113C, 11/01/91/32055B,11/01/91/32057D |
POINT OF PRINCIPLE
When considering a claim for enhanced rates on the basis of Regulation 3(4)(c)(iii) of the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 consideration should, when deciding if there are "any other exceptional circumstances" of the case, be given to whether any of the following exist:
1. Factors which might raise an exceptional circumstance:
(a) Innate difficulties of communication with the client, for example mental health problems, deaf, speech-impaired, or autistic clients, or clients requiring an interpreter (although attention should first be given as to whether this has been covered by longer than normal hours of attendance being claimed);
(b) a conflict of detailed expert evidence (as opposed to merely contested expert evidence, and/or a proliferation of expert witnesses);
(c) a hearing in excess of two days without counsel;
(d) conflict between the guardian ad litem and the child, where the child instructs his own solicitor.
2. Factors which might but not necessarily would raise exceptional circumstances:
(a) detailed contested allegations of sexual or serious abuse;
(b) a large number of parties with competing applications;
(c) involvement of children with different needs.
The transfer of the case to a care centre or from a care centre to the High Court is indicative of complexity and weight only and is not conclusive of exceptional circumstances. Where exceptional circumstances are said to arise there must be a factor, or combination of factors in the particular case which is exceptional or are unusual in care proceedings.
The factors set out above are not an exhaustive list. They relate to the circumstances of the case itself and not to claims for enhanced rates based on Regulations 3(4)(c)(i) and (ii) of the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 which have regard to the manner in which the work was done.
Where exceptional circumstances are sought to be established and solicitors seek remuneration on the basis of the exercise of the assessing officer's discretion pursuant to Regulation 3(4)(c) the solicitor must precisely identify the exceptional circumstances and those specific items of work in respect of which enhancement is sought.
[see Re: Children Act 1989 (Taxation of Costs) [1994] 2 FLR 934].
CLA 10: Non-contentious work to put into effect an order in family proceedings
| Decision Number: | CLA 10 |
| Date: | 14 June 1993 |
| Office Reference Number: | 15/01/90/18991T - Civil |
POINT OF PRINCIPLE
The rates of remuneration in the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 do not apply to non-contentious work undertaken on behalf of an assisted person as a direct result of a court order. The rates allowed should be those which are reasonable in all the circumstances of the case for privately funded non-contentious work.
CLA 11: Enhanced rates in family proceedings
| Decision Number: | CLA 11 |
| Date: | 21 February 1994 |
| Office Reference Number: | 01/01/91/63249Q & 01/01/91/52226J - Civil |
POINT OF PRINCIPLE
Where the criteria for paying enhanced rates set out in Regulation 3(4)(c) of the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 are met, the relevant authority may exercise their discretion in determining the amount of costs to be allowed in accordance with Regulation 3(7) of the Legal Aid in Family Proceedings (Remuneration) Regulations 1991.
Following the decision of Freeman v. Freeman [21.2.1992]¹ such claims will be assessed on the basis of broad average direct cost of the work (the 'A' figure) to which is added a percentage uplift (the 'B' figure) to take into account all the relevant circumstances of the case.
¹ reported in Butterworths Costs Service
CLA 12: Medico-Legal assistants as fee earners
|
Decision Number: |
CLA 12 |
| Date: | 17 May 1994 |
| Office Reference Number: | 01/01/91/05985X |
POINT OF PRINCIPLE
Work carried out by an in-house medico-legal assistant will generally be fee earning work. The hourly rate and mark-up applicable will be what is appropriate in all the circumstances having regard to the nature of the work carried out and the special skills and qualifications possessed by the person concerned.
CLA 13: Preparation of attendance notes
| Decision Number: | CLA 13 |
| Date: | 17 May 2004 |
| Office Reference Number: | 08/01/92/22546 |
POINT OF PRINCIPLE
In principle, the time taken in recording and preserving information necessary to be recorded and preserved for the proper conduct of a client's affairs is allowable on assessment.
CLA14: Assisted person's travelling and other expenses
| Decision Number: | CLA 14 |
| Date: | 27 June 1994 |
| Office Reference Number: |
09/01/93/06580J - Civil |
POINT OF PRINCIPLE
On the assessment of a bill, in respect of which, if it had been taxed, the County Courts Rules would have applied, when considering a claim for travel or other expenses, the appropriate authority shall allow, on the assessment, such expenses as would have been allowed under Order 38 Rule 15 County Courts Rules on taxation.
On the assessment of a bill, in respect of which, if it had been taxed, the Matrimonial Causes (Costs) Rules 1988 would have applied, when considering a claim for travel or other expenses, the appropriate authority shall allow, on the assessment, such expenses as would have been allowed under Rule 17 Matrimonial Causes (Costs) Rules 1988.
CLA 15: Preparation of annual report on case
Decision Number:
CLA 15
Date:
26 September 1994
Office Reference Number:
01/01/90/17303D - Civil
| Decision Number: | CLA 15 |
| Date: | 26 September 1994 |
| Office Reference Number: | 01/01/90/17303D - Civil |
POINT OF PRINCIPLE
Practice Direction No. 2 of 1992 (Direction 2, paragraph 1.17) states that the drawing of a bill of costs is not fee earner work and, save in exceptional circumstances, no charge should be sought for such work.
However, where a claim is made for preparing the Board's Annual Report on Case and claim for costs form (and the case does not itself present exceptional circumstances), consideration should be given to making a small allowance which is for the solicitor's time in preparing and submitting the Annual Report on Case. Normally an allowance of 6 to 12 minutes would be appropriate although a higher allowance may be appropriate for more complex cases.
CLA 16: Applications to the European Commission
| Decision Number: | CLA 16 |
| Date: | 18 October 1994 |
| Office Reference Number: | 06/01/91/20893K - Civil |
POINT OF PRINCIPLE
Where an application to the European Commission [now the Court of First Instance of the European Communities] is an essential preliminary step in court proceedings in England and Wales, such an application would be within the scope of a certificate granted to cover such court proceedings.
CLA 17: Routine letters
| Decision Number: | CLA 17 |
| Date: | 24 July 1995 |
| Office Reference Number: | 05/01/94/11579B - Civil |
POINT OF PRINCIPLE
In Item 3 column 1 of Schedule 1 of the Legal Aid in Civil Proceedings (Remuneration) Regulations the words "which are not routine" relate to each of:
1. letters written,
2. letters received, and
3. telephone calls.
CLA 18: Prescribed rates and non-contentious business
| Decision Number: | CLA 18 |
| Date: | 21 November 1995 |
| Office Reference Number: | 03/01/94/5462J, 01/01/94/10360P, 01/01/94/16712U & 01/01/94/82525T |
POINT OF PRINCIPLE
Remuneration under the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994 or the Legal Aid in Family Proceedings Regulations 1991 includes all work undertaken in respect of anticipated or contemplated proceedings notwithstanding that no proceedings were actually issued.
CLA 19: Assessment of authorised disbursements
| Decision Number: | CLA 19 |
| Date: | 11 December 1995 |
| Office Reference Number: | 06/01/93/16964F - Civil |
POINT OF PRINCIPLE
An authority given under Regulations 59, 60 or 61 of the Civil Legal Aid (General) Regulations 1989 does not place a ceiling on the fees that can be claimed in respect of the disbursement so authorised. On assessment further consideration may be given to any additional sums claimed.
CLA 20: Reasons for reduction in experts' fees
| Decision Number: | CLA 20 |
| Date: | 11 December 1995 |
| Office Reference Number: | 03/01/94/18039E & 03/01/94/18036B - Civil |
Where experts’ fees are reduced on an assessment and the reduction is not accepted, reasons for the reduction must be given on application.
CLA 21: Enhancement of prescribed rates for membership of the law society's clinical negligence panel
| Decision Number: | CLA 21 |
| Date: | 23 September 1996, amended 19 May 2003 |
| Office Reference Number: | CA4/DEL/109666, CA4/VER/122564 |
POINT OF PRINCIPLE
Membership of the Law Society’s Clinical Negligence Panel is not in itself an exceptional circumstance justifying payment of an enhanced rate under Regulation 5(1)(c) of the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994, but membership of the Panel may be a factor which contributes to a decision that enhanced rates are justified.
Factors which may indicate whether a clinical negligence case was conducted with exceptional competence, skill or expertise, so as to justify an enhancement under Regulation 5 (1)(a) of the same Regulations, include: the extent to which the solicitor relied on his or her own expertise rather than counsel; and whether the solicitor him- or herself has obtained the client’s medical records, identified and assessed the relevant contents, and following that analysis, sent a detailed letter of instruction to the client’s medical expert or experts.
CLA 22: Review and supervision on a franchised file
| Decision Number: | CLA 22 |
| Date: |
27 April 1998 |
| Office Reference Number: | CA4/BAL/112770 |
POINT OF PRINCIPLE
Time properly spent by a franchised firm reviewing and supervising files to meet the franchising criteria is time properly chargeable provided that it coincides with the stage in the proceedings at which the file would normally be reviewed and work done would be recoverable on taxation as work reasonably done having regard to the needs of the case.
N.B. THIS DECISION APPLIED TO ALL CIVIL LEGAL AID CERTIFICATES GRANTED ON OR AFTER 1 DECEMBER 1998.
CLA 23: Mediation in non-family proceedings
| Decision Number: | CLA 23 |
| Date: | 26 October 1998 |
| Office Reference Number: | CA4/WIL/113645 |
POINT OF PRINCIPLE
Work carried out by legal representatives in advising on, preparing for and, where appropriate attending a mediation hearing can in principle be allowable on assessment in a non-family case. In such cases an appropriate share of the reasonable costs of the mediation may also be claimed as a disbursement under the certificate.
CLA 24: completion of application form for payment on account
| Decision Number: | CLA 24 |
| Date: | 22 February 1999 |
| Office Reference Number: | CA4/FAR/114522 |
Where a claim is made for completing the Board’s form CLA28/CLAIM4 (Application for a Payment on Account) consideration should be given to making a small allowance for the solicitor’s time in preparing and submitting the form. Normally an allowance of six minutes will be appropriate.
CLA 25: Use of local solicitors agents
| Decision Number: | CLA 25 |
| Date: | 26 April 1999 |
| Office Reference Number: | CA4/COL/115031 |
Where a claim for costs includes travelling time, the assessor may consider whether it would have been more reasonable to instruct a solicitor agent than to incur the travelling time and cost. The assessor will consider whether there are any factors which would have made it reasonable for the solicitor to undertake the work. If the assessor considers that it was unreasonable for the solicitor to incur the travel time and cost, the assessor will reduce or disallow travelling costs to the extent that they exceed the costs which would have been allowed if an agent had been instructed. The sum for time and costs in these circumstances will include a notional allowance for:
1. an agent undertaking the work;
2. a fee-earner arranging the agent and preparing a letter or other form of instruction; and
3. considering any reports or correspondence received from the agent.
CLA 26: Whether indexing and pagination is fee-earner or adminiStrator work
| Decision Number: | CLA 26 |
| Date: | 2 November 2000 |
| Office Reference Number: | CLA4/SIM/117708 |
POINT OF PRINCIPLE
In determining the extent to which indexing and pagination of disclosed medical records is fee-earner work or administrative, it is relevant to consider whether the work involves only indexing and paginating, or also includes analysis of the contents of the disclosed documents, identification of missing documents and parts of documents, and consideration of how the disclosed documents should be presented to make the issues clear. While merely listing and numbering pages should not be remunerated as fee-earner work, the elements of the work which demand more than administrative skills can properly be charged at fee-earner rates. It is for the solicitor in each case to justify a claim for work done at fee-earner rates.
CLA 34: Fee-earner time spent translating or interpreting
| Decision Number: | CLA 34 |
|
Date: |
18 August 2003 |
| Office Reference Number: | CA4/KRI/121775 |
The principle that a solicitor may only be paid for undertaking fee-earning work is unaffected by the fact that the work is done in a language other than English. A solicitor who speaks the same foreign language as the client may only claim as a fee-earner for fee-earning time: no payment may be made where a fee-earner merely translated papers or acted as an interpreter.
CLA 35: Evidence and means where the client is staying with a benefactor
| Decision Number: | CLA 35 |
| Date: | 18 August 2003 |
| Office Reference Number: | CA4/KRI/121775 |
POINT OF PRINCIPLE
Where a client is staying with, and dependent on, a benefactor, it is not necessarily impracticable for the client or solicitor to seek evidence from the benefactor of the extent of support being provided. A failure by the benefactor to respond should be recorded on the file.
CLA 37: Burden and standard of proof on assessment
| Decision Number: | CLA 37 |
| Date: | 6 November 2003 |
| Office Reference Number: | CA4/HOW/ |
POINT OF PRINCIPLE
The burden of proof to justify a claim for costs remains throughout on the solicitors. The assessment is performed on the standard basis defined in Rule 44.4(2) CPR 1998. The standard of proof to be applied on consideration of evidence by those involved in assessment under paragraphs 2.14 to 2.18 of the GCC specification, when neither the contract, nor the guidance invoked by it, specifies the standard required, is the normal civil standard.
Guidance
The civil standard of proof is flexible, but the courts have always refused to be more specific about how it should be adapted according to different facts and circumstances. In the assessment of costs payable from public funds, the courts recognise that a balancing exercise is to be undertaken between the proper use of public funds and the need for appropriate remuneration for the solicitor.
The standard required cannot vary from firm to firm, nor depend on the wider implications of the assessment. However, the decisions made at all levels in audit cases have very significant consequences for all parties. Those undertaking assessments which are applied generally must therefore carry out their responsibilities with care, understanding the seriousness of the task and ensuring that when deciding whether an item is allowed or disallowed the decision is properly justified.
Whilst the contract requires that adequate attendance notes be kept, regard may also be had to all the circumstances (including the particular client’s needs, the nature of the proceedings, and the requirements arising at the stage they have reached) as well as other contents of the file, in making judgments as to whether work was done and its reasonableness. The test to be applied is that laid down in Francis v Francis and Dickerson [1955] All ER 836, without applying hindsight, and having appropriate regard to guidance both on the reasonable expenditure of time and on good practice.
CLA39 Completing application form in public law children act work
| Decision Number: | CLA 39 |
| Date: | 16 February 2004 |
| Office Reference Number: | CA4/GUE/126216 |
POINT OF PRINCIPLE
Time spent completing an application for funding in Special Children Act proceedings is treated as work done by a fee-earner under the Certificate.
Guidance
The point of principle relates only to Special Children Act Proceedings, defined in Section 2 of the Funding Code, where the applicant is a child, its parent or a person with parental responsibility; or where a child is not, but wishes to be, represented on an application for a secure accommodation order. In these cases, funding is available without reference to the client’s means, or the standard Funding Code criteria for Legal Representation at paragraph 5.4 of the Funding Code. As long as the application is made at the first available opportunity, and arrives in the regional office within three working days of the solicitor being instructed, the costs incurred by the solicitor from receiving instructions to act in the proceedings are deemed to be within the certificate (Funding Code Procedures C7). Consequently, where the form arrives in the regional office within the time limit, the costs of completing the application for funding (CLSAPP5) are deemed to be within the scope of the certificate. In all other circumstances, costs incurred before the grant of funding are not within the scope of the certificate and may be met either under Legal Help or by the client paying privately.
CLA 40: Consequences of solicitor's failure to comply with regulations or contract
| Decision Number: | CLA 40 |
| Date: | 12 June 2004 |
| Office Reference Number: | CA4/HEN/126054 |
POINT OF PRINCIPLE
If a solicitor fails to comply with a requirement in regulations or a contract governing the conduct of publicly funded cases, with the result that the Fund incurs loss, the Commission may defer, or withhold payment of, the solicitor’s profit costs. The loss resulting from the solicitor’s act or default must be quantified. If there is a series of breaches, the loss flowing from each must be identified separately.
Guidance
The Commission’s powers to withhold payment of profit costs are in Regulation 102 Civil Legal Aid (General) Regulations 1989 (as amended) in relation to licensed work and Rule 1.14 of the General Civil Contract Specification in relation to work performed under that contract.
Last updated: 01 October 2004