The Bar Council recently hosted its Civil Legal Aid Billing Seminar aimed at helping civil practitioners operate best practice in legal aid billing and reduce the chances of rejection.

With grateful thanks to our speakers: Graham McDonald (Legal Aid Agency); Kathryn Jolly (Garden Court Chambers) and Bob Baker (Costs Lawyer).

Here are some tips from our speakers:

Accepting cases

  • Check: the date of the legal aid certificate, its scope and cost limitation. Any work done before the date of the certificate, outside its scope or above its costs limit will not be paid.

Monitoring and submitting bills

  • Keep in regular contact with the billing person for your solicitor for any changes to the limits on the certificate.
  • The more detail and justification is in your bill the less likely is it to be rejected. And, if you win the case and it becomes subject to a costs order where you can claim inter-partes rates, you have the evidence to justify your fees.
  • In CF1A claims (where Counsel are required to submit a breakdown of their fees to the instructing solicitor to form part of the bill submission to the LAA at the conclusion of the case) the solicitor needs to upload their final claim before you can submit your final bill. Co-ordinate with the solicitor to make sure figures match for the allocated amount etc, e.g. find out what percentage enhancement the solicitor is claiming so you are in line. You must submit your bill within 14 days of the solicitor submitting theirs.
  • In immigration cases and in some judicial review cases where the clients are not from the UK or do not have residential status, ask the solicitor the VAT status of the lay client. In some cases you cannot claim with VAT.

Enhancements

  • Work with the solicitor to ensure there is enough ‘headroom’ on the limit of the certificate to claim for enhancements.
  • Maximum enhancements that can be claimed are a 50% for the County Court and 100% for the Upper Tribunal, High Court, Court of Appeal and Supreme Court.
  • You can’t claim an enhancement on travel and waiting. When claiming for travel, justify the reason for travel and provide the evidence.
  • Avoid generic reasons when justifying the enhancement claimed. Use client/case specific justification and liaise with the solicitor that you are giving the same justification. Try to link the facts and law specific to the case to the factors mentioned in Para 12 of the Costs Assessment Guidance.

Payments on Account (POAs)

  • Can claim up to 80% of your fees, less the enhancements. The solicitor has to allocate your costs on CCMS first before you can claim for POAs. Can claim a POA a.) on the anniversary of the certificate (Covid concessions currently allow a claim for the first POA 3 months after the certificate was issued); b.) within 6 months of date of the Taxable Judgment; c.) a hardship claim.

High Cost Cases

  • Any civil case where the final costs either to settlement or final hearing are likely to exceed £25,000. These are managed by the Exceptional and Complex Case Team.
  • Before the Barrister Acceptance Form (BAF) is signed by the barrister or clerk, liaise with the solicitor over the draft Case Plan about the rates to be claimed and any enhancement that is permitted, before the solicitor submits the Plan.
  • Once a case is under a high cost contract, counsel’s fees are billed at the prescribed rates until the £25k has been reached of combined solicitor, experts and counsels costs. After that, work done is billed at Junior Counsel - £50 per hour; Senior Junior Counsel £90 per hour; QC £90 per hour (no enhancements can be claimed on these rates). Therefore, bill as much as you can during the under £25k period, before the lower hourly rates are applied
  • Whether a barrister is paid a Junior Counsel or Senior Counsel rate is something to be agreed with the LAA in advance. In this scheme the determining factor is not whether the barrister is over 10 years call. It requires justification such as the barrister is leading another barrister and/or has a particular specialist expertise.

Exceptional Case Funded (ECF) cases

  • Fees: Brief Fee £900 Junior Counsel, £1,800 QC; Refresher £450 Junior Counsel; £630 QC. You can claim for accommodation and travel expenses (not travel time) but only if these were included in the estimate of costs at the outset. So, work with the solicitor to prepare that estimate.

Useful resources

Civil Finance Electronic Handbook

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/947840/Civil_Finance_Electronic_Handbook_V3.1.pdf

Payment on Account Quick Guide

https://legalaidlearning.justice.gov.uk/mod/resource/view.php?id=183

Guidance for Counsel: High Cost Payment on Account Scenarios

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/837964/Guidance_for_Counsel_POA.pdf

Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/956837/Costs_Assessment_Guidance_2018_-_Version_4-_February_2021___clean_.pdf

The Civil Legal Aid (Remuneration) Regulations 2013

https://www.legislation.gov.uk/uksi/2013/422/contents

VHCC Barristers Information Civil Pack (Non Family)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651807/vhcc-barristers-information-pack-non-family.pdf

Advanced Guide for CCMS billing for Barristers

https://legalaidlearning.justice.gov.uk/mod/resource/view.php?id=178

LAA Contact Points:

Adrian Vincent, Bar Council Head of Legal Practice and Remuneration.