The Litigator Graduated Fee Scheme Guidance

Transcription

1 The Litigator Graduated Fee Scheme Guidance Issued: 14 January 2008 Re-Issued: 01 February February March July September September September 2009

2 Table Of Contents Introduction to The Litigator Graduated Fee Scheme 3 1. What is the Litigator Graduated Fee Scheme (LGFS)? 3 How and When to Claim Fees Under the LGFS 5 2 Submitting Bills Under the LGFS 5 3 Claiming the Final Litigator Fee 10 4 Discontinuance or Dismissal of Sent or Transferred Proceedings 17 5 Warrants for Arrest 18 6 Assisted Person Unfit to Plead or Stand Trial 18 7 Payment of LGFS Fees to Litigators 19 8 Appeals Process 19 9 Very High Cost Case (VHCC) Panel Scheme Provisional Representation Order (PRO) Confiscation Hearings Preparation Fees Committals for Trial/s51 Hearings Support for litigators 22 Appendix A Key Contacts List 23 Appendix B Case Type Scenarios Clarified 25 Annex C Breach of Crown Court orders September 2009

3 Introduction to The Litigator Graduated Fee Scheme 1. What is the Litigator Graduated Fee Scheme (LGFS)? 1.1 The LGFS is a remuneration scheme for litigators undertaking Crown Court work. The LGFS was implemented on 14 January 2008 and it replaced the existing standard fee and ex post facto payment system Under the LGFS, litigators are paid a graduated fee for Crown Court cases that are not contracted as Very High Cost Cases (VHCC) 2. The fee is determined by pieces of case information or what are referred to as proxies. These are case type, offence type, trial length and the number of pages of prosecution evidence (PPE). 1.3 An uplift or increased payment is made to litigators who represent more than one defendant in a case 3. Defendant Uplifts Total number of defendants represented by litigator Percentage uplift to total fee % 5+ 30% 1.4 The Advocates Graduated Fee Scheme (AGFS) is the remuneration scheme for advocates undertaking Crown Court work. The Graduated Fee Scheme Guidance for advocates can be found at The LGFS and AGFS are regulated by the Criminal Defence Service (Funding) Order 2007 ( Funding Order ), as amended. 1.6 The LGFS has fixed fees for certain hearings arising out of non-indictment cases. These are payment for contempt proceedings (where contempt is alleged to have been committed by a person other than the defendant) 4, alleged breach of a Crown Court order 5, committals for sentence and appeal against sentence and conviction from the Magistrates Court 6 and for cases with a representation order dated on or 1 Details of these payment regimes can be found in the original Schedule 2 to the Criminal Defence Service (CDS) (Funding) Order 2007 (Funding Order) ( 2 Please refer to Article 4 of the Criminal Defence Service (Funding) (Amendment) Order 2007 (No.3552). This Order (which covers the LGFS) can be viewed at 3 Please refer to Schedule 2, Part 2, paragraph 9 of the Funding Order 4 Please refer to Schedule 2, Part 3, paragraph 13 of the Funding Order 5 Please refer to Schedule 2, Part 3, paragraph 14 of the Funding Order 6 Please refer to Schedule 2, Part 3, paragraph 12 of the Funding Order 30 September 2009 Support for Practitioners in Using the Scheme 3

4 after 3 August 2009, some hearings post sentence 7. The rates for these fixed fees are set out in the regulations governing the LGFS 8 and in the table following paragraph 2.21 of this guidance. 1.7 The LGFS was modeled on historical data and most areas of work are included in the final graduated fee and therefore do not attract separate remuneration. Some of these areas of work include but are not limited to: attendance on the client attendance at court travel and waiting time (actual travel disbursements are remunerated separately) viewing or listening to CCTV/audio/video evidence unused material sentence hearing if separate from the trial interlocutory appeals special measures hearings 1.8 For more details of the LGFS (i.e. consultation, response to consultation, final impact assessment and guidance), please refer to the LSC website ( 1.9 The LGFS guidance is a live document and will continue to be updated as and when necessary to reflect any procedural and regulatory changes to the LGFS The guidance contained in this document is only the recommended line to take and does not take away the responsibility of the appropriate authority (i.e. LSC) to determine claims as they see fit and in accordance with the regulations. Interim Review 1.11 A review of the LGFS commenced in August 2008 between the LSC, Ministry of Justice, The Law Society representatives and Her Majesty s Court Service (HMCS). The review focused on examining the impact of the scheme to date on the fixed fees and to address any anomalies or omissions within the Funding Order. The review group recommended changes to the scheme and these were included in a Funding Order consultation with the representative bodies 9. This guidance has been updated to reflect these changes. 7 Please refer to Schedule 2, Part 3, paragraph 12A of the Funding Order 8 Please refer to Schedule 2, Part 3 of the Funding Order 9 The Criminal Defence Service (Funding) (Amendment) Order 2009 can be found at 30 September 2009 Support for Practitioners in Using the Scheme 4

5 How and When to Claim Fees Under the LGFS 2 Submitting Bills Under the LGFS 2.1 Cases with representation orders dated on or after 14 January 2008 must be remunerated under the LGFS. 2.2 Cases with representation orders dated before 14 January 2008 must be remunerated under the old standard fee/ex post facto regime. 2.3 LGFS claims must be sent to the Litigator Fee Team (LFT) in Nottingham or Liverpool. Please see Annex A for the address and relevant contact details. 2.4 Payment can only be made to the litigator named on the representation order. 2.5 Where there has been a transfer between the original litigator and the new litigator on a case, the date of the original representation order applies for the purposes of making a claim under the old system or LGFS. Only in exceptional cases, where the original representation order has been revoked and a new representation order is granted to a (new) litigator will the date of the new representation order apply. 2.6 In the situation where two cases are joined, and the first case comes under a representation order dated before the 14 January 2008 and the second case has a representation order dated on or after 14 January 2008, the first date will be held to be the appropriate date for the purposes of identifying which scheme is applicable. In the circumstances outlined in the paragraph above, the litigator would submit a bill to the National Taxing Team (NTT) or the Courts as appropriate. 2.7 The LF1 10 is the claim form for litigators and is required to be completed and sent to the LFT. 2.8 The LSC is committed to minimising the amount of additional evidence that needs to be submitted to support a claim for payment. It is important however that the LSC has sufficient evidence to validate payments in order to avoid: risk to the legal aid fund by limiting the ability to validate the claim risk of not being able to match up disbursements with the claim affecting turnaround times as there are still a number of cases on the court s CREST system that are incorrectly flagged as private cases 11 hindering the LFT in tracing claims with ease as the LF1 contains information not on the Crown Court Litigator Fee (CCLF) online system. 2.9 The LSC therefore requests that litigators continue to complete an LF1 and submit the following: a copy of the representation order 10 Please go to for a copy of the form. 11 This is largely because many cases are committed to the Crown Court before the legal aid position in the magistrates has been settled. Clarifying the details on CREST with the court can lead to further delays. 30 September 2009 Support for Practitioners in Using the Scheme 5

6 any original invoices/prior authority forms/explanatory material for disbursements being claimed a copy of the indictment evidence of the final PPE figure (e.g. committal bundle/nae cover sheet) or where the case has been transferred, evidence of the PPE figure at the time of the transfer (e.g. most recent NAE or original committal bundle cover sheet) 2.10 The LSC will keep litigators updated with developments on moving towards a paper free process Litigators have three months from the end of the case or the date of the transfer to submit their bills under the LGFS Litigators are encouraged to submit their claim via the CCLF online system along with an LF1 form If litigators submit anything to the LFT in hard copy form (such as invoices for disbursements), then this must be accompanied by the LF Where the claim has not been entered onto CCLF, the LF1 must be signed before being submitted to the LFT For a case that includes a trial and a retrial, the trial and retrial should be billed separately. For example, if there is no change of litigator, the litigator should submit two separate claims i.e. a trial claim and a retrial claim If a solicitor-advocate has undertaken both the preparatory litigation work and advocacy work on the same case, they should submit separate claims under LGFS and AGFS No advocacy in the Crown Court can be paid for as part of a litigator s bill, but can instead be claimed under the AGFS. However, any advocate can have their fee paid to a solicitor s firm when submitting a claim (the advocate must be set up as a solicitor advocate on the court s CREST system) provided the advocate is the Instructed Advocate. Currently, AGFS claims are submitted for payment to the Crown Court, and not to the LFT If you need to contact the LSC about claiming fees, please contact the LFT. Please refer to Appendix A for the address and relevant contact details of the LFT. VAT 2.19 In accordance with the LSC guidance on VAT, all cases reported as concluded before 1 December 2008 will attract a VAT rate of 17.5%, and all cases reported as concluding on or after 1 December 2008 will attract a VAT rate of 15% However, as the concluded date is not recorded for LGFS claims, the relevant date is the payment request date. If a payment is claimed on CCLF, then the relevant date 12 Please refer to paragraph 6 (3) of the Funding Order 13 Please refer to and 30 September 2009 Support for Practitioners in Using the Scheme 6

7 is the date the claim was entered and saved. For paper based claims this will be the date that the LF1 was received and date stamped by the LSC. If the case details are entered online, then the relevant date is when the corresponding paper copy is received and date stamped by the LSC. 14 Fixed Fees 2.21 The LGFS has fixed fees for certain hearings. The following table reflects these fixed fees along with the rate change for representation orders issued on or after 3 August Type of proceedings Fee payable (representation order before 3 August 2009) Appeal against sentence from a Magistrates Court Appeal against conviction from a Magistrates Court Committal for Sentence Contempt Proceedings (where contempt is alleged to have been committed by a person other than the defendant Alleged breach of a Crown Court order Hearing subsequent to sentence Fee payable (representation order on or after 3 August 2009) Appeal against sentence or conviction from a Magistrates Court 2.22 Appeal against conviction or sentence can be claimed provided a notice of appeal has been lodged and an application for legal aid has been granted. Alleged breach of a Crown Court order 2.23 Please refer to Annex C for a table of how specific alleged breaches of Crown Court orders are remunerated The use of the word single in paragraph 14(1) of the Funding Order is following paragraph 1 of the Funding Order where the LGFS applies to proceedings against one person (a) on one or more counts in a single indictment, (b) arising out of a single notice of appeal or single committal for sentence or (c) arising out of a single alleged breach of an order. It therefore refers to each and every breach so if a person committed two breaches of an order at the same time, paragraph 14 applies separately to each breach. 14 Please refer to for further information. 30 September 2009 Support for Practitioners in Using the Scheme 7

8 2.25 Breach proceedings attract a fee in their own right, subject to any provision to the contrary, such as paragraph 14(2) which applies to proceedings dated before 3 August 2009 that are undertaken by the original litigator. Hearings Subsequent to Sentence 2.26 A litigator may claim a fixed fee for the following proceedings with a representation order dated on or after 3 August 2009: Section 1CA of the Crime and Disorder Act 1998 (variation and discharge of orders under 1C) Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (alteration of Crown Court sentence) Section 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendant: review of sentence) Claiming Disbursements and interim Payments 2.27 Litigators may claim disbursements 15 for experts 16 fees and reasonable travel incurred by them. Travel time for litigators is included in the graduated and fixed fees Where a litigator is claiming an unusual disbursement (e.g. a high value disbursement or a disbursement not usually associated with a type of case), then documentary evidence supporting the need for incurring the cost should be submitted. This documentary evidence may take the form of experts breakdown of costs for proposed work, advice from the instructed advocate etc. and will be similar to the type of supporting evidence usually required under ex post facto Litigators may claim interim payments 17 for disbursements where prior authority to incur expenditure of 100 or more has been obtained and the liability has been incurred. Expert disbursements 2.30 Where a litigator has claimed an interim payment for a disbursement for work incurred by an expert, reasonable travel expenses for the expert shall also be claimed Travel disbursements and VAT can be claimed in addition to the sum granted for prior authority, provided they are accompanied by valid receipts or tickets. Under previous payment schemes (e.g. ex post facto), receipts were not required for travel disbursements valued under 10. Under the LGFS, this threshold has been raised to 20, so litigators will not be expected to submit original receipts or travel tickets for any disbursements up to 20. Because this is a new threshold which has yet to be put to the test, litigators should keep copies of receipts for travel disbursements valued between 10 and 20 with their paper files for the time being, as they may 15 Please refer to Articles 6 and 16 of the Funding Order 16 This covers medical experts, translators/interpreters, financial experts or any other expert 17 Please refer to Articles 14 and 15 of the Funding Order respectively 30 September 2009 Support for Practitioners in Using the Scheme 8

9 need to be called upon. The LSC will be working with the National Audit Office (NAO) to determine whether such copies will be required indefinitely and will inform you when we receive advice on this matter As attendance at court is wrapped up in the graduated fee, litigators shall not claim agency fees as a disbursement. Litigators have the option of apportioning their fee to pay for the agent if they wish When looking at the reasonableness or otherwise of experts disbursements, we will apply the guidance set out in CBAM. Travel disbursements for litigators 2.34 When looking at the reasonableness or otherwise of travel disbursements, the LSC will apply the guidance set out in CBAM and in the Unified Contract (Crime) Article 14 of the Criminal Defence Service (Funding) Order 2007 refers to the claiming and authorisation of interim payments for disbursements. The intention behind Article 14(7) is to allow experts access to information regarding the amount payable for a disbursement Routinely informing experts of when both full and interim payments are made would place a significant administrative burden on the LSC and the National Taxing Team and the time taken to process claims may suffer as a result. Therefore, while the LFT is unable to routinely inform experts, they welcome queries at any time and will inform an expert as to whether a particular disbursement has been paid to a litigator If an expert is having difficulties receiving payment from a litigator, they should inform the LSC and The Law Society and take the appropriate course to recover their money under the terms of their contract. Hardship payments 2.38 Hardship payments can be claimed and paid to litigators where the value of the case at the time of the claim is more than 5000 (excluding VAT) and where the litigator has been running the case for 6 months or longer 19. The litigator also needs to provide evidence of hardship Predicted future costs of the case will not be considered As CCLF calculates payments inclusive of VAT, litigators will need to manually check that their claim meets the requirement of 5000 or more exclusive of VAT before they submit an on-line claim. Litigators may use the calculator on the LSC website for this purpose To make a hardship claim, litigators must submit the latest LF1 version, a copy of the representation order, the case details (offence type, PPE and number of defendants) and evidence of financial hardship. 18 Please note this article was amended on 3 August 2009 to incorporate the wording may notify. 19 Please refer to Article 21 and paragraph 19 of Funding Order 30 September 2009 Support for Practitioners in Using the Scheme 9

10 2.42 The 6-month rule applies to the litigator and not to the Representation Order. Therefore, if a litigator has begun representing a client following a transfer of legal aid from a previous litigator, the period of time for the new litigator (for the purposes of calculating 6 months) commences on the date of transfer of legal aid, not from the original date of grant Litigators cannot make hardship claims where it is likely that the case will end within three months Evidence needs to be provided to prove hardship. The hardship must pertain to the litigator firm and not to an individual. Evidence should take the form of bank statements and letters from the bank Because of the way CCLF is configured, hardship payments can only be paid under cracked or trial claims. If the claim is for a guilty plea case, the LFT shall pay the claim as if it were a final fee, and reconcile the difference at the end of the case. 3 Claiming the Final Litigator Fee Case Type 3.1 There are thirty types of case that a litigator can claim for under the LGFS and these are outlined and explained in full at Appendix B. These include claims for discontinuances, fixed fees, transfers and re-trials. 3.2 The main case types providers can claim and be paid for are Trial, Crack, and Guilty. 3.3 Any case that has a paper Plea and Case Management Hearing (PCMH) is deemed to have had a PCMH for determining the type of case. 3.4 Trial is defined as including all hearings that pertain to the main case i.e. from when the jury is sworn and evidence is called or from the date of a preparatory hearing, to the day of the acquittal or sentencing verdict hearing. 3.5 Whenever a judge has directed that there be a preparatory hearing under Section 29 of the Criminal Procedure and Investigations Act 1996, the first preparatory hearing shall be deemed as the start of the trial. This, and any subsequent preparatory hearing, will therefore be included in the length of trial calculation irrespective of whether the preparatory hearing(s) is/are held immediately before the rest of the trial or at an interval of some months before. No other fee should be paid for the attendance at the preparatory hearing(s). 3.6 Where there is a preparatory hearing but no jury is sworn thereafter because the client pleads guilty, the case is either a cracked trial where a PCMH has taken place, or a guilty plea where a guilty plea has been entered at or before a PCMH. 3.7 If the Court considered other matters for days or parts of days before a jury is sworn such as disclosure, abuse of process or Public Interest Immunity (PII) hearings, then these whole days are not treated as part of the trial. 30 September 2009 Support for Practitioners in Using the Scheme 10

11 3.8 Whenever an abuse, disclosure, admissibility, PII or other pre-trial hearing takes place, the result of which leads to a guilty plea or the prosecution offering no evidence (or otherwise disposed of), the hearing type will be a cracked trial or guilty plea, depending on when the guilty plea was entered. 3.9 Where a Newton Hearing takes place, the case is treated as a trial with the hearing that the guilty plea was taken being the main hearing and the Newton Hearing being the second (and subsequent) day(s) of the trial A case cannot be treated as a trial where a Newton hearing is listed but does not take place A cracked trial is a case that is terminated between the PCMH and the first day of trial 20. A case where no PCMH took place, but the case was listed for trial and did not get to trial or Newton Hearing, is also deemed to be a cracked trial Adjourning a PCMH to allow the prosecution time to decide whether or not to proceed would not qualify for a cracked trial fee A guilty plea is the guilty plea, which is entered at or before the PCMH 21 or a case that is not proceeded with at or before the PCMH, unless it falls within the discontinuance provisions in Schedule 2, Part 3, paragraph 16, page 38 of the Funding Order (as amended) At a PCMH, where a not guilty plea is entered, and is followed by a subsequent change of plea to guilty on the same day only a guilty plea fee can be paid If a trial is aborted and another jury is sworn in either on the same day or the following working day, then the case is considered to be one trial. If there is a gap of more than one working day then it is considered to be a Retrial. Offence Class 3.16 Litigators must only claim one offence class under the LGFS. A full list of offences and their respective offence class can be found in the Funding Order 2007 at Schedule 1, Part 6, page Litigators can claim under the class of any offence with which their client(s) is/are charged on an indictment. Where a case has more than one count on the indictment in differing classes, then the litigator must select one offence and the fee is based on that offence The fee can only be based on an offence with which the defendant represented by the litigator is charged on the indictment. The litigator cannot claim for an offence that only co-defendants are charged with. 20 Please refer to Schedule 2, Part 1, Paragraph 1 (1) of the Funding Order for a precise definition of cracked trial 21 Please refer to Schedule 2, Part 1, Paragraph 1 (1) of the Funding Order for a precise definition of a guilty plea 30 September 2009 Support for Practitioners in Using the Scheme 11

12 3.19 The LFT can review any piece of evidence to determine the value of the fraud. Litigators can submit indictments, case summaries or witness statements to assist the determining officer with their assessment The majority of commonly prosecuted indictable offences are classified as shown in the Table of Offences in the Funding Order. Any indictable offence which is not classified, is automatically classified as Class H Conspiracy to commit an indictable offence, contrary to section 1 of the Criminal Law Act, falls within the same class as the substantive offence. For example, Conspiracy to commit arson would be treated as arson New offences or unusual offences fall under Category H For a robbery to be treated as an armed robbery (offence group B), one of the following two examples must apply. A robbery where a defendant or co-defendant to the offence was armed with a firearm or imitation firearm, or the victim thought that they were so armed, e.g. the Defendant purported to be armed with a gun and the victim believed him to be so armed although it subsequently turned out that he was not should be classified as an armed robbery. A robbery where the defendant or co-defendant to the offence was in possession of an offensive weapon, namely a weapon that had been made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use, should also be classified as an armed robbery. However, where the defendant, or co-defendant, only intimate that they are so armed, they (sic) should not be classified as an armed robbery 3.24 It is for the litigator to provide evidence to support any valuation over 30,000 (or 100,000) that takes an offence into a higher class if the value is not specified on the indictment Where two or more counts relate to the same property, then the value of the property should only be counted once Where a litigator in proceedings in the Crown Court is dissatisfied with the classification within Class H of an indictable offence not listed in the Table of Offences, s/he may apply to the LFT, when lodging his/her claim for fees, to reclassify the offence. The appropriate officer must either confirm the classification of the offence within Class H or reclassify the offence and must notify the litigator of his/her decision There are some offences where the offence class might change because of an additional factor such as where a restriction order is made, under s41 of the Mental Health Act For more information on the limited instances where the offence classes may alter, please refer to Schedule 1, Part 1, paragraph 3, page 21 of the Funding Order. 22 Please refer to Schedule 2, Part 1, Paragraph 3 (1), Funding Order for more details relating to this and other ancillary matters pertaining to classification of offences 30 September 2009 Support for Practitioners in Using the Scheme 12

13 Length of Trial 3.28 The length of trial is the number of days of the trial, starting with the day the jury were sworn or where a preparatory hearing is ordered under section 29 of the Criminal Procedure and Investigations Act 1996 or section 7 of the Criminal Justice Act The fee is based on the total number of trial days, regardless of whether the Court sat for ten minutes or four hours on any given particular day at trial. This includes the sentence hearing, except where there is a transfer of litigator before the sentence Where a Newton hearing takes place, this is treated as going to trial and therefore the length of trial will be the length of the main hearing and Newton hearing Where there is a transfer during trial, the original litigator must only claim the trial length at the time of the transfer. Pages of Prosecution Evidence (PPE) 3.32 PPE includes all witness statements, documentary and pictorial exhibits, records of interviews with the assisted person, and records of interviews with other defendants, which form part of the committal or served prosecution documents (first bundle for cases that are sent or transferred) or which are included in any Notice of Additional Evidence (NAE) and are served in paper format on the court PPE does not include any document provided by means of electronic communication 25, unused material or material generated by the defence in their preparation of the case The litigator should submit evidence of the total PPE figure at the time that their involvement in the case ended (either because the case concluded or the case transferred to another litigator) to the LFT along with the LF1 form Evidence should be in the form of the evidence bundle cover sheet (along with any NAE cover sheets where applicable) that identifies the pages for that bundle and for CPS cases, the running PPE total for that case (the CPS have committed to printing running totals of PPE on the front sheet of all new bundles and NAEs. There will be a running total for statements, documentary and pictorial exhibits, and records of interviews and the combined total will be the total PPE figure) Advocates should complete a PPE form and submit it to the court clerk along with evidence of the PPE at the end of the case. This PPE figure will be entered onto the court s CREST system, which will be used to validate AGFS claims. Please see 23 Please refer to Schedule 2, Part 1, Paragraph 2 (4), Funding Order 24 Please refer to Schedule 2, Part 1, Paragraph 1(2) of the Funding Order 25 As above 30 September 2009 Support for Practitioners in Using the Scheme 13

14 3.37 When representing more than one defendant on a case, and an identical (or nearly identical) bundle of PPE is served for each defendant, only the PPE from one bundle may be included for the purposes of claiming under the LGFS. The remuneration for extra work likely to have been undertaken for additional defendants is catered for in the defendant uplift Where a case is transferred, the litigator may claim for the PPE served on the court up to the date of the transfer. The PPE proxy reflects the work done by the litigator, therefore it would not be appropriate to include pages served after they have no further involvement in the case. Evidence of the PPE count at the time of the transfer must be provided Advance disclosure does not count towards PPE. Only bundles (committal or first bundle for indictable only cases) or NAE that are served on the Crown Court will be included in the page count Any versions of a transcript that have been edited for the purpose of being put before the jury should not be counted Title pages, index pages and separator pages should not be counted towards the PPE page count Any page that is allowable is to be counted as one page regardless of the number of lines or images on the page. No allowance should be made for either small or large typefaces. Electronic evidence 3.43 Where the litigator receives prosecution evidence on CD-Rom, and a paper copy of that evidence has been served on the court, the pages that have been served on the court will be counted as PPE for the purpose of the graduated fee Where the litigator and the court are both served with prosecution evidence on CD- Rom, litigators can claim for special preparation 26, provided the prosecution evidence on that CD-Rom falls within the definition of PPE in the Funding Order Remuneration for listening to or viewing audio or video footage such as interview tapes or CCTV is wrapped up in the fee and cannot be claimed as special preparation. Special Preparation 3.46 Special preparation can be claimed where: Any or all of the prosecution evidence, as defined in paragraph 1(2) of the Funding Order, is served in electronic form only The representation order is dated on or after 3 August 2009 and the number of PPE, as so defined, exceeds 10, Please refer to Schedule 2, Part 3, Paragraph 15 of the Funding Order 30 September 2009 Support for Practitioners in Using the Scheme 14

15 and the determining officer considers it reasonable to make a payment in excess of the graduated fee, within the circumstances of the case There is a 100,000 page cap on PPE for representation orders granted on or after 14 January 2008 but before 3 August 2009, and no provision for special preparation for excess pages When making a determination under special preparation the following will apply: where pages of statements and exhibits are scanned into a computer and produced electronically for convenient presentation and the electronic evidence has been served on the defence and the court as part of a committal or first bundle or NAE, the determining officer may adjust the special preparation fee so that the litigator receives an amount as if this evidence had been served in paper format on the court Where electronic media material is served (e.g. a sample of individual documents or images extracted from a computer hard drive that are not scanned statements or exhibits but which the prosecution are relying on), and the evidence has been served on the defence and the court as part of a committal or first bundle or NAE, the determining officer may consider the reasonable hours of time spent viewing the material. Bad character and prosecution evidence served at trial 3.49 The prosecution is unlikely to serve complete files of bad character evidence for the purposes of proving the circumstances of a previous conviction. The prosecution will ensure that only relevant bad character material is formally served with an NAE and this will be included in the PPE count Where prosecution evidence is served during the trial, and the pages are omitted from the prosecution s PPE page count, the advocate or litigator can speak to the prosecution case manager at the trial to ensure it is added to the final PPE page count. Number of Defendants 3.51 Litigators must claim the number of legally aided defendants represented by the litigator firm on the case Where defendants are joined to or severed from a case, providers should claim for the number of defendants they are representing for each particular case. Joined/Severed cases 3.53 A case is defined as proceedings against a single person on a single indictment regardless of the number of counts. If counts have been severed so that two or more counts are to be dealt with separately, or two defendants are to be dealt with separately, or if two indictments were committed together but dealt with separately, then there are two cases and the litigator may claim two fees. 27 Please refer to Schedule 2, Part 2, Paragraph 9 of the Funding Order 30 September 2009 Support for Practitioners in Using the Scheme 15

16 3.54 Conversely here defendants are joined so that one case number is adopted for the case, a claim should only be made under that case number and not for earlier aborted case numbers Where a case is transferred between Courts and obtains a different case number but other than that is unchanged as a case, only one fee should be claimed Where there is a re-trial with the same case number as the original trial, litigators will obtain an additional payment for the re-trial element of the case. U Numbers 3.57 Individuals, other than the defendant, shall be granted funding if they meet the necessary funding criteria in relation to a matter which may be treated by judges as criminal contempt by virtue of s13 (2) of the CDS Funding Order This regulation is wide-reaching and would cover/include contempt by jurors (such as a juror's failure to attend jury service when summoned, which is an offence punishable as if it were a criminal contempt in the face of the court). Transfer provisions 3.58 The Funding Order was amended on 3 August 2009 to provide greater clarity regarding transfers. Even though the following was introduced for proceedings on or after 3 August 2009, the LFT will use the guidance in this section for all proceedings that fall within the LGFS The term transfer has been extended to include the grant of a representation order to an individual who immediately before the grant of the order had represented him/herself had been represented privately by the litigator named on the representation order In both scenarios in paragraph 3.56, the litigator shall be treated as a new litigator. If a different litigator represented the defendant privately, the litigator named on the representation order shall be treated as an original litigator If the defendant chooses to represent him/herself privately after being represented by a litigator named on a representation order, the litigator shall be treated as an original litigator A case will not be considered to be a transfer to a new litigator in the following situations: Where a firm of solicitors is named as litigator on the Representation Order and the solicitor or other appropriately qualified person with responsibility for the case moves to another firm and maintains conduct of the case Where a firm of solicitors is named as litigator on the Representation Order and the firm changes whether it be by merger, acquisition or in some other way, but the new firm remains closely related to the original firm A solicitor or other appropriately qualified person is named as litigator on the Representation Order and the responsibility for the case is transferred to another 30 September 2009 Support for Practitioners in Using the Scheme 16

17 solicitor or appropriately qualified person in the same firm or a closely related firm Where a case has been transferred to a new litigator (Litigator B), and is transferred again (to Litigator C), then Litigator B: a) Shall be treated as an original litigator where the transfer takes place at any time before the trial or any retrial b) Shall be treated as a new litigator where the transfer takes place during the trial or any retrial c) Shall not receive any fee where the transfer from B to C takes place after the trial or any retrial but before sentencing hearing Point c) in paragraph 3.60, applies where both transfers occur after trial but before sentence. In this scenario, firm B will not receive payment. Where a transfer occurs before trial or during trial (from firm A to B), and there is another transfer after trial but before sentence (from firm B to C), firm B will be treated as a new litigator Paragraph 3.61 replaces the former guidance found in Appendix B of the LGFS Guidance updated 23 July 2008 and shall be applied to all cases with multiple transfers The scenario During trial transfer retrial (new litigator) has been removed as it was a duplication of Transfer during retrial (new litigator) A litigator may not be treated as an original litigator and as a new litigator in a case. 4 Discontinuance or Dismissal of Sent or Transferred Proceedings The term discontinuance is used very specifically in the LGFS. Under the scheme, the term discontinuance relates to a type of fee applied to certain types of cases that conclude up to and including the PCMH (or pre-pcmh as we refer to it later in Appendix B). 4.2 The term discontinuance is used more widely in the Courts to refer to certain proceedings, such as where proceedings 29 are discontinued by notice or an application has been made to dismiss the case and certain conditions are met. This definition of discontinuance is not relevant within the LGFS for the purposes of claiming under the scheme. The reason for this is as follows: 28 Please refer to Schedule 2, Part 3, paragraph 16 of the Funding Order 29 Proceedings which are sent for trial to the Crown Court under section 51 of the Crime and Disorder Act1998 (no committal proceedings for indictable-only offences); or transferred to the Crown Court under (i) section 4 of the Criminal Justice Act 1987 (transfer of serious fraud cases); or (ii) section 53 of the Criminal Justice Act 1991 (transfer of certain cases involving children). 30 September 2009 Support for Practitioners in Using the Scheme 17

18 4.2.1 Where a case concludes up to and including PCMH but the prosecution has served some of its case, a pre PCMH (guilty plea) fee will be paid Where a case concludes up to and including a PCMH and the prosecution has not served any of its case, a discontinuance fee will be paid. 5 Warrants for Arrest 5.1 This payment type is an interim payment (or fee advance ), which is claimable in situations where the defendant absconds and a warrant is issued for his or her arrest. 5.2 Where a warrant is issued for a defendant who fails to attend, (and the case does not proceed in his/her absence) and the defendant is rearrested (e.g. the warrant is executed) within 3 months, the case will be treated as if there was no break for the purposes of payment. This means the litigator will claim a litigator fee at the conclusion of the case as normal. Therefore only one fee is payable. 5.3 Where the warrant is executed after 3 months has passed since issue of the warrant, or where the client is not rearrested, the litigator can claim an interim payment for the portion of the case that occurred before the client absconded. Provision for such payments is made within CCLF under Bill Type Fee Advance, sub bill type warrant. Provision is also available to claim on the LF1 form. 5.4 At the conclusion of a case, where a client has been subsequently rearrested (the warrant is executed), the interim warrant payment may be offset against the final fee for the case. This depends on the timing of the execution of the warrant. 5.5 Where the warrant is executed more than three months after the issue of the warrant, but within 15 months of the issue of the warrant, the interim warrant payment will be offset against the final fee at the end of the case. 5.6 Where the warrant is executed more than 15 months after the issue of the warrant and the same litigator represents the client in the case, the liigator can claim both the interim warrant payment and a whole new LGFS payment for the rest of the case. Therefore, two fees are claimable. 5.7 Full details of the rules of the warrants for arrest can be found in Schedule 2, Part 3, paragraph 18 of the Funding Order. 6 Assisted Person Unfit to Plead or Stand Trial 6.1 In a case, where a fitness hearing has taken place and the trial continues this will have been treated as a day at trial for the purposes of payment and therefore the length of trial will be taken to include the combined length of the main hearing and the fitness hearing. 6.2 In a case where a fitness hearing takes place and a trial is not held, the litigator may claim a cracked trial fee. 6.3 In a case where a fitness hearing takes place and a guilty plea is entered subsequently, the litigator may claim a guilty plea fee. 30 September 2009 Support for Practitioners in Using the Scheme 18

19 6.4 However, there are possible alternative claims and litigators should familiarise themselves with Schedule 2, Part 4, paragraph 20, page 41 of the CDS (Funding) (Amendment) Order 2007 for details. 6.5 Where such a fitness hearing takes place, litigators will be expected to submit documentary evidence to the LFT to support their additional trial length claim or other payment requirements under this provision. 7 Payment of LGFS Fees to Litigators 7.1 LGFS payments are made by the LGFS system and will show up on a separate line on the litigators monthly statement. You should receive a payment for all LGFS claims in the next available LSC BACS payment run after your claim has been authorised. It is likely that payments will take anywhere between 2 weeks and 8 weeks. Under LSC targets, we are required to process LGFS final bills within 8 weeks and interim payments within 4 weeks. Appeals and reviews have different timescales (see section 8 below). 7.2 The rules governing LGFS payments are set out in Article 24 of the Funding Order. Wasted costs 7.3 The calculation of wasted costs will not be possible using the LGFS system as the new scheme pays on pages of evidence/trial length and not on hourly rates. However, this should not preclude the court making a wasted costs order based on an estimated cost. 8 Appeals Process 8.1 Appeals will occur when there is a dispute on the fees paid by the LFT to the litigator. Under the LGFS, the litigator will send their bill to the LFT. The LFT will validate the litigator s claim details and notify the litigator (online or by letter/ ) of the LFT decision providing written reasons. 8.2 The litigator has 21 days, from the date of the LFT decision, to ask the LFT to review the decision 30. The litigator should complete the LF2 form 31 and submit this together with a copy of the LF1. LFT Review 8.3 The review involves the LFT checking the information supplied by the litigator against actual court case file information. 30 Please refer to Article 29 of the Funding Order September 2009 Support for Practitioners in Using the Scheme 19

20 8.4 The LFT will then determine whether any amendments need to be made to the payment and amend the payment accordingly. 8.5 The LFT will subsequently notify the litigator of the review decision by or by post. In practice, the LFT will provide written reasons for the decision. 8.6 If no written reasons have been provided, the litigator may request written reasons from the LFT explaining their decision 32 within 21 days of the review decision If the litigator is still unhappy with the written reasons given by the LFT, then the litigator has a right to appeal to the Costs Judge. Appeal to Costs Judge 8.8 Litigators may appeal the decision by the LFT to the Costs Judge for a decision to be made on costs. They have to do this within 21 days of the receipt of the written reasons, by giving notice in writing to the Senior Costs Judge Litigators must inform the LSC of their decision to appeal so the LSC can also provide appropriate information to the Costs Judge. The LFT will send all necessary information to the Costs Judge (for example, original litigator claim, information supplied to the LFT by the Courts, LFT review decision including court case files and written reasons) to help them judge the costs in the case At the close of the appeal process, the LSC will amend the payment as appropriate and inform the litigator(s). Limited Right of Appeal to the High Court 8.11 A further limited right of appeal to the High Court also exists for providers and is detailed in the Funding Order at Article Very High Cost Case (VHCC) Panel Scheme 9.1 Litigators are under a contractual and regulatory obligation to notify the Complex Crime Unit (CCU) 35 of the LSC if they are representing a defendant on a case that may meet the VHCC criteria. 9.2 Where a non-panel litigator transfers a case to a VHCC panel member, and the Representation Order is dated before 3 August 2009, the non-panel member must submit their claim for work done up until the date of the transfer request, to the LFT. 32 Please refer to Article 29 (8) of the Funding Order 33 Please refer to Article 29 (9) of the Funding Order 34 Please refer to Article 30 of the Funding Order 35 Please refer to 30 September 2009 Support for Practitioners in Using the Scheme 20

21 9.3 Where a non-panel litigator transfers a case to a VHCC panel member, and the Representation Order is dated on or after 3 August 2009, the non-panel member must submit their claim for work done up until the date of the transfer request, to the CCU. 9.4 Where paragraph 9.3 applies, the CCU will assess and pay the claim in accordance with the VHCC contract. The non-panel litigator is not permitted to make a claim under the LGFS. 9.5 Where paragraph 9.3 applies, if the litigator wishes to appeal the assessment of the claim, they can appeal within the VHCC appeal provisions. They are unable to appeal to a cost judge. 9.6 Where the CCU declassifies a VHCC, the LSC will recoup monies paid while the case was a VHCC, less an administrative fee. 9.7 The fee will be calculated as three hours work for every stage except for stage 0, or part of a stage up to the date on which CCU declassify the VHCC. This fee will be paid to the litigator s firm where the case manager was a fee earner or the advocate where the case manager was the advocate. 9.8 Where paragraph 9.6 applies, the litigator can claim payment under LGFS at the end of the case. 9.9 If the LFT receive a claim for a case that meets the VHCC criteria, they will confirm with CCU that the case was notified. 10 Provisional Representation Order (PRO) 10.1 For more information on PROs, please see the Criminal Defence Service (Provisional Representation Orders) Regulations 2009 (S.I.2009 No.1995) Where plea negotiations are successful, CCU will inform the LFT. The PRO contract specifies that the litigator can claim a guilty plea fee under LGFS, but must exclude the PPE proxy Where plea negotiations are unsuccessful, the prosecution are likely to continue with their investigation. If charges are made, the defence team will still be under an obligation to notify the case if it meets the VHCC criteria. If the case does not get classified as a VHCC, the litigator can claim under the LGFS in the usual way. 11 Confiscation Hearings Preparation Fees 11.1 Confiscation proceedings continue to be remunerated by ex post facto determination However, at a future point the LSC expects to extend the LGFS to cover this work. We intend to work with the profession to devise an appropriate method of payment for these hearings under the LGFS. 12 Committals for Trial/s51 Hearings 36 Please refer to Schedule 2, Part 4, Paragraph 21 of the Funding Order 30 September 2009 Support for Practitioners in Using the Scheme 21

22 12.1 Committal for trial payments are separate to the LGFS and remain in the Magistrates Courts. Payment for section 51 cases that are sent for trial in the Crown Court is included in the LGFS graduated fee. 13 Support for litigators 13.1 The LSC have produced this guidance, which details the LGFS scheme and how and when to claim fees under the new scheme. This guidance has been published on the LSC website for providers information Moreover, we have published an online user guide for providers to inform them how to claim LGFS fees using the CCLF online system A CCLF Training CD-ROM and CD-ROM guide was sent to all criminal litigators when the LGFS was introduced. The easy to use CD-ROM contains realistic system simulations taking you through the new CCLF online payment system. The CD-ROM is aimed at those who are going to be using CCLF to claim for litigator fees. It can be used as many times as needed If you have not received the CD-ROM or if you have any difficulties using the CD- ROM, please contact the LSC Online Helpdesk via onlinesupport@legalservices.gov.uk Technical I.T (CCLF) support will be available to providers. For details of who to contact, please refer to the CCLF user guide for providers, which can be found on our website. 30 September 2009 Support for Practitioners in Using the Scheme 22