SCCO Ref: 294/09
B e f o r e :
| APPEAL PURSUANT TO THE COSTS IN CRIMINAL CASES (GENERAL) REGULATIONS 1986 AND THE LEGAL AID IN CRIMINAL AND CARE PROCEEDINGS (COSTS) REGULATIONS 1989/PURSUANT TO REGULATION 20(7) OF THE CRIMINAL DEFENCE SERVICE (FUNDING) ORDER 2001/CRIMINAL PROCEDURE RULES 2005/REGULATION 30 OF THE CRIMINAL DEFENCE SERVICE (FUNDING) ORDER 2007
|- and -
Crown Copyright ©
"Section Five – Claim Details
Final trial date not yet concluded.
Trial length in days Not taken place yet. Number of pages of PPE 5,000 c full figure not known as case not concluded.
Section Six – Total Claim
Litigator fee claimed £5,284.72
"We wish to appeal your decision in respect of the LF2 claimed submitted … Our interpretation of the relevant Regulations and LGFSG (Litigator Graduated Fee Scheme Guidance) is that at the point of transfer the firm is paid a percentage of the final case fee. The final case fee is the fee based on the total number of pages served at the conclusion of the case not at the time of transfer. The LGFS is drafted on the basis that there is one case fee and it is percentages of this that are paid, not as the LSC have interpreted the guidance. If the LSC are correct in their interpretation this would lead to two case fees (or more if there are subsequent transfers with different numbers of PPE served) …
It is our submission … that our claim is properly made on the final number of pages at the conclusion of the case. If the trial has not yet occurred (or other disposal) then it is not possible yet to establish the final case fee.
We lodged our claim initially at this point not so that we are limited to the page count at, for example, the PCMH but so that there is no argument that the claim is made within time …
We submit that we should be paid on the PPE of the final page count at the conclusion of the case.
"We do not accept the interpretation of the Regulations and guidance as set out in your letter is correct. You have sought to argue that a firm who transfers a Crown Court case to another firm at an early stage in the proceedings should be paid a percentage of the final case fee, based on the proxies at the time the case concludes.
Paragraph 10(2) of Schedule 2 of the Criminal Defence Service (Funding) Order 2007 ("the Order") provides:
"Where (a) a case is transferred to a new litigator … the original litigator and the new litigator must receive a percentage of the total fee in accordance with the table following sub-paragraph (6), as appropriate to the circumstances and timing of the … transfer of the representation order."
We consider that the Litigator Fee Team have correctly interpreted the Funding Order by regarding the "total fee" as being calculated on the basis of the timing of the transfer. If a case is transferred at or before the Plea and Case Management Hearing, it follows that only the PPE at the time of the transfer is relevant for calculating the graduated fee of the litigator who is transferring the case.
You have suggested that where there is a transfer, a percentage of the overall fee is split between the original and new litigator (eg, original litigator gets 25% and new litigator gets 75% meaning that the fund pays the same whether there is a transfer or not). The Litigator Graduated Fee Scheme (LGFS) does not work like this. If a case is transferred from the original litigator on or before the PCMH, the table which follows paragraph 10 in schedule 2 of the Funding Order, provides that the original litigator is able to claim 25% of the cracked trial fee. The new litigator who acts for the rest of the case (assuming it goes to trial) is entitled to claim 100% of the trial fee. This means that the total costs for that case to the tax payer are the trial fee and an additional 25% cracked trial fee."