The need to prepare an inter partes Bill of Costs in legally aided matters is few and far between in the post LASPO era given that many of the matters that were previously legally aided no longer meet the funding criteria.
However , some cases are still trickling through and where the matters have been subject to costs budgeting and an inter partes costs order has been made, legal aid bills not only need to be split into six columns (legal aid v inter partes) but also need to be phased, with a Precedent Q produced accordingly.
Some important things to remember:
Authority for Assessment of Costs under legal aid (taken from the Legal Aid Costs Assessment Guidance 2013
14.1 -The right to assessment of costs is governed by Paragraph 6.36 of the Specification
14.2 -Where proceedings have been issued, the normal event giving rise to the right for assessment under Legal Aid is a final order for public funding assessment.
14.3 -If the proceedings end without such an order, acceptance of an offer of settlement or discontinuance of proceedings by either party is an authority for a public funding assessment, as it gives rise to a right to assessment under CPR 47.7
14.4 -Otherwise, whether or not proceedings have been issued, the withdrawal of the legal aid certificate (after any appeal has concluded and after service of any required notices by the provider) is authority for a public funding assessment.
Preparation of a bill
14.8 - Bills drawn up by law costs draftsmen after 26 April 1999 are “work done” within the meaning of paragraph 18(3) of the Practice Direction to Part 41 of the Civil Procedure Rules (CPR). A law costs draftsman’s fee may be paid, in accordance with the guidance below, for any bill drawn up for assessment by the Agency where it was reasonable to instruct a draftsman to draw the bill.
14.9 -Although the cost draftsman’s fee may sometimes have been viewed as a disbursement, the better view is that this work forms part of a providers’ profit costs, with any draftsman acting as their agent (Crane –v- Canons Leisure Centre  EWCA Civ. 1352). Whilst the draftsman may charge the provider at a percentage of the profit costs as drawn in the bill, the rate claimed for drafting the bill should be that for preparation within the relevant table of the Remuneration Regulations. The same will apply where the preparation of any Precedent H Costs Budget is carried out by the costs draftsman.
The statutory charge and contributions
14.11-Under Regulation 6(1)(b) of the Statutory Charge Regulations, the costs of drawing and checking the bill are not part of the costs of the assessment process, as they are incurred before the commencement of the assessment proceedings. Such work, and the associated costs thus fall within the costs of the main proceedings and count towards the statutory charge and the costs to which the client is required to pay contributions, where relevant (Paragraph 6.44(b) of the Specification).
Detailed assessment by the Court
16.1- Costs that fall to be determined by way of detailed assessment through the courts will need to comply with the provisions of Part 47 of the Civil Procedure Rules (CPR).
Practical Points to consider:
- An assessment of the matter will be dealt with in the same way as any other inter partes matter.
- The main difference will be the format of the Bill of Costs which will have 6 columns separating legal aid only and inter partes costs.
- There should be separate parts to reflect: 1. Periods when the client did not have Legal Aid. 2. Work done under Legal Help. 3. Costs claimed only against the Legal Aid Agency
- If there are Legal Aid and inter-partes costs claimed with a pre-certificate element the retainer should be described. This retainer might be a Legal Help or a private retainer.
- Where costs are claimed between the parties where a Legal Aid certificate was in force a schedule of between the parties costs at Legal Aid rates must also be prepared. •The indemnity principle does not apply in legally aided matters.
- The costs limitations will not apply however the scope of the certificate needs to be duly considered as any costs incurred outside the scope will not be recoverable.
- Where experts/counsel have presented fee notes at legal aid rates, ask for an amended fee note at inter partes rates for inclusion in the Precedent H as otherwise, the particular phase is likely to be under budgeted.
- Audit legally aided matters at regular intervals to ensure the budget is accurate and reduce the likelihood of overspends. In the event that it is likely a phase will be exceeded, it is more proficient to amend the budget than have to explain reasons for departure from the budget at the detailed assessment stage.
- It is likely that some of the legal aid only costs will not fall within the remit of a particular phase, such as completion of legal aid forms or for example, in cases where an expert report was commissioned but not relied upon. In such instances, the figures within the Bill of Costs and the Precedent Q document may not match. This should not cause any undue concern however be aware of this when checking the Bill against the Precedent H.
What should not be charged between the parties?
(i) Work (including counsel’s fees, experts’ reports or other disbursements) that the Agency has specifically requested or authorised to assist in decision making regarding the grant, continuation or amendment of the terms of legal aid, but is not reasonably claimed between the parties;
(ii) Completion of the Lord Chancellor’s forms and other communications with the Agency
(iii) Work for which the Agency has granted prior authority but is not reasonably claimed between the parties (Paragraph 5.11 of the Specification) (iv) Costs of reasonable adjustments to comply with the provider’s duty under the Equality Act 2010 (v) Travel expenses of a legally aided client other than to attend court as a witness of fact. (vi) The cost of funding work. In summary, even with legally aided matters, a more proactive approach to case management during the lifetime of the case will ultimately maximise your costs recovery.
Written by Sianette Boyden - Costs Draftsman and Chartered Legal Executive
The purpose of this blog is to provide information and discussion. Nothing on this blog should be relied upon as a substitute for advice from a qualified Solicitor regarding any actual legal issue or dispute. Nothing on this website should be construed as legal advice or perceived as creating a solicitor – client relationship. Just Costs Limited can accept no liability in contract or tort to any person, firm or company that relies on or makes use of the above, or any part thereof.