Legal Aid Remuneration for Counsel in Civil (Non-Family) Proceedings
24 October 2011
This Note is to alert chambers to the effect on barristers'
remuneration in civil legal aid cases resulting from the Community
Legal Service Funding Amendment No 2 Order: (SI 2011 No.2006) and
to invite comments as to any amendments required to this
Schedule 7 of the Order specifies new hourly rates which the Legal
Services Commission (LSC) will pay to counsel in civil (non-family)
proceedings when it assesses counsel's fees. These purport to be a
10% reduction on existing "benchmark" rates. The Bar Council does
not recognise these rates.
The new reduced rates will not apply to work done under existing
certificates (where the application for funding was signed before 3
October and where the application was received by the LSC before 10
October 2011). It will apply to all subsequent certificates.
The only discretion provided by Article 5C(3) is one to increase
the hourly rates to be paid to junior counsel (defined as a
barrister of less than 10 years' Call) in the County Court.
On 15 September 2011, the Chairman of the Bar wrote to Ministry of
Justice (MoJ) seeking clarification on a number of issues about
Article 5C and Schedule 7 of the Order. In particular, the schedule
fails to specify fees in a number of relevant scenarios. The LSC
has confirmed that in these circumstances, fees will be "at large",
namely at the discretion of the assessing officer.
On 22 September, the MoJ responded stating that it intends to
bring forward an Amendment Order, as soon as practical, to give
effect to the prescribed rates in a number of additional scenarios.
A schedule has been provided specifying these rates. This schedule
proposes that junior counsel will be paid less for appearing in the
High Court (£112.50 per hour) than the London Rate in a County
Court (£135 per hour with discretion to increase this). This is
just one example of the arbitrary nature of the new rates.
The MoJ has clarified the circumstances when the "London Rate"
(£135 as opposed to £112.50 per hour) will be paid to junior
counsel in County Courts, namely where the barrister's chambers is
in the LSC's London Region, as defined by the LSC Regional
Arrangements 2000. It is unclear why this London weighting does not
apply to the Higher Courts.
The MoJ has invited the Bar to submit any further comments by
Thursday 24 November with a view to consulting on the text of a
draft Funding Order before the end of the year and to laying the
necessary amending Order in early 2012. We welcome this opportunity
for a constructive dialogue.
We must recognise the context within which the MoJ will consider
any amendments, namely a 10% reduction applied to the fees being
paid to counsel prior to October. We remain of the view that the
10% reduction has been applied to figures significantly below those
rates and we would welcome evidence to support this contention.
However, as is apparent from the further exchange of letters dated
30 September and 20 October, it is apparent that the MoJ is not
willing to discuss the basis of the new rates.
Any comments and evidence to challenge these figures should be
sent to Marie Bray.
Vice Chair (Civil) Remuneration Committee