The Criminal Legal Aid (Remuneration) Regulations 2013

Citation and commencement E+W

1.  These Regulations may be cited as the Criminal Legal Aid (Remuneration) Regulations 2013 and shall come into force on 1st April 2013.

Interpretation E+W

2.—(1) In these Regulations—

“the Act” means the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

“advocate” means a barrister, a solicitor advocate or a solicitor who is exercising their automatic rights of audience in the Crown Court;

“appropriate officer” means—

(a)

in the case of proceedings in the civil division of the Court of Appeal, the head of the civil appeals office;

(b)

in the case of proceedings in the criminal division of the Court of Appeal, the registrar of criminal appeals;

(c)

in the case of proceedings in the Crown Court, the Lord Chancellor;

(d)

in respect of advice or assistance as to an appeal from the Crown Court to the Court of Appeal (except in the case of an appeal under section 9(11) of the Criminal Justice Act 1987 M1 (preparatory hearings)) where, on the advice of any representative instructed, notice of appeal is given, or application for leave to appeal is made, whether or not such appeal is later abandoned, the registrar of criminal appeals;

(e)

in respect of advice or assistance as to an appeal to the Courts-Martial Appeal Court, the registrar of criminal appeals;

(f)

in respect of advice or assistance as to an appeal from the Court of Appeal to the Supreme Court, where the appeal is not lodged with the Supreme Court, the registrar of criminal appeals; and

(g)

in any other case, the Lord Chancellor,

and, in any case, includes an officer designated by the person who is the appropriate officer by virtue of paragraphs (a) to (g) to act on his behalf for the purposes of these Regulations;

“assisted person” means an individual in whose favour a section 16 determination has been made;

“fee earner” means a litigator, or person employed by a litigator, who undertakes work on a case;

“instructed advocate” means—

(a)

where the section 16 determination provides for representation by a single advocate, the first barrister or solicitor advocate instructed in the case, who has primary responsibility for the case; or

(b)

where the section 16 determination provides for representation by more than one advocate, each of—

(i)

the leading instructed advocate; and

(ii)

the led instructed advocate;

“leading instructed advocate” means the first leading barrister or solicitor advocate instructed in the case who has primary responsibility for those aspects of a case undertaken by a leading advocate;

“led instructed advocate” means the first led barrister or solicitor advocate instructed in the case who has primary responsibility for those aspects of the case undertaken by a led advocate;

“litigator” means the person referred to in the representation order as representing an assisted person, being a solicitor, firm of solicitors or other appropriately qualified person.

“related proceedings” means—

(a)

two or more sets of proceedings involving the same defendant which are prepared, heard or dealt with together; or

(b)

proceedings involving more than one defendant which arise out of the same incident, so that the defendants are charged, tried or disposed of together;

“representation order” means a document which records a section 16 determination;

“representative” means a litigator or an advocate including, where appropriate, an instructed advocate;

“section 16 determination” means a determination made under section 16 of the Act that an individual qualifies for representation for the purposes of criminal proceedings;

“senior solicitor” means a solicitor who, in the judgement of the appropriate officer, has the skill, knowledge and experience to deal with the most difficult and complex cases;

“solicitor advocate” means a solicitor who has obtained a higher courts advocacy qualification in accordance with regulations and rules of conduct of the Law Society;

“solicitor, legal executive or fee earner of equivalent experience” means a solicitor, Fellow of the Institute of Legal Executives or equivalent senior fee earner who, in the judgement of the appropriate officer, has good knowledge and experience of the conduct of criminal cases;

“trainee solicitor or fee earner of equivalent experience” means a trainee solicitor or other fee earner who is not a Fellow of the Institute of Legal Executives, who, in the judgement of the appropriate officer, carries out the routine work on a case;

“Very High Cost Case” means a case in which a section 16 determination has been made and which the Director classifies as a Very High Cost Case on the grounds that—

(a)

in relation to fees claimed by litigators—

(i)

if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 40 days and the Director considers that there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act; or

(ii)

if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last no fewer than 25 and no more than 40 days and the Director considers that there are circumstances which make it suitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act;

(b)

in relation to fees claimed by advocates, if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 60 days and the Director considers that there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act.

[F1 “Very High Cost Case contract” means the 2013 VHCC contract between the Lord Chancellor and a representative for the provision of representation under section 16 of the Act (criminal legal aid).]

(2) The fees and rates set out in the Schedules to these Regulations are exclusive of value added tax.

(3) A function of the Lord Chancellor or Director under these Regulations may be exercised by, or by an employee of, a person authorised for that purpose by the Lord Chancellor or Director respectively M2 .

Textual Amendments

F1 Words in reg. 2(1) inserted (2.12.2013) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 (S.I. 2013/2803), regs. 1, 3(3) (with reg. 4)

Marginal Citations

M1 1987 c. 38.

M2 Section 6 of the Act (authorisations) makes provision for authorisations given for the purpose of section 5 of the Act (delegation) or regulations under that section.

Scope E+W

3.—(1) Regulations 5(2), 10 and 14(1) apply to proceedings in magistrates' courts and to proceedings in the Crown Court.

(2) Regulation 8 and Schedule 4 apply to proceedings in magistrates' courts, to proceedings in the Crown Court and to proceedings in the High Court.

(3) Regulations 16 and 31 and Schedule 5 apply to proceedings in magistrates' courts, to proceedings in the Crown Court and to proceedings in the Court of Appeal.

(4) Regulations 4, 5(1) and (3) to (8), 13, 14(2) to (9), 15, 17 to 24 and 28 to 30 and Schedules 1 and 2 apply to proceedings in the Crown Court only.

(5) Regulations 9, 11 and 25 to 27, apply to proceedings in the Crown Court and to proceedings in the Court of Appeal.

(6) Regulation 6 and Schedule 3 apply to proceedings in the Court of Appeal only.

(7) Regulation 7 applies to proceedings in the Supreme Court only.

(8) With the exception of [F2 regulations 12 and 12A,] paragraphs 13(8) and (9) of Schedule 2 [F3 and Schedule 6], these Regulations do not apply to Very High Cost Cases.

(9) For the purpose of these Regulations, any reference to the Court of Appeal includes as appropriate a reference to—

(a) the criminal division of the Court of Appeal;

(b) the civil division of the Court of Appeal;

(c) the Courts-Martial Appeal Court; and

(d) a Divisional Court of the High Court.

Textual Amendments

F2 Words in reg. 3(8) substituted (2.12.2013) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 (S.I. 2013/2803), regs. 1, 3(4)(a) (with reg. 4)

F3 Words in reg. 3(8) inserted (2.12.2013) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 (S.I. 2013/2803), regs. 1, 3(4)(b) (with reg. 4)

Claims for fees by advocates – Crown Court E+W

4.—(1) Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to these Regulations.

(2) A claim for fees under this regulation and Schedule 1 must be made by each instructed advocate.

(3) Subject to regulation 31, a claim by an instructed advocate for fees in respect of work done pursuant to a section 16 determination must not be entertained unless the instructed advocate submits it within three months of the conclusion of the proceedings to which it relates.

(4) An instructed advocate must submit a claim for fees to the appropriate officer in such form and manner as the appropriate officer may direct.

(5) An instructed advocate must supply such further information and documents as the appropriate officer may require.

(6) Where a confiscation hearing under Part 2 of the Proceeds of Crime Act 2002 M3 (confiscation: England and Wales), section 2 of the Drug Trafficking Act 1994 M4 (confiscation orders) or section 71 of the Criminal Justice Act 1988 M5 (confiscation orders) is to be held more than 28 days after—

(a) the conclusion of the trial to which the section 16 determination relates; or

(b) the entering of a guilty plea,

an instructed advocate may submit any claim for fees in respect of the trial or guilty plea as soon as the trial has concluded or the guilty plea has been entered.

(7) Where the section 16 determination provides for representation by—

(a) a single advocate other than a QC; or

(b) two or more advocates other than QC,

and a QC agrees to appear as the single advocate or as a leading junior, that QC must be treated for all the purposes of these Regulations as having been instructed in relation to that determination, and the remuneration of that QC must be determined as if the advocate were not a QC.

Marginal Citations

M3 2002 c. 29.

M4 1994 c. 37. Section 2 was repealed by sections 456 and 457 of, and Schedules 11 and 12 to, the Proceeds of Crime Act 2002, subject to certain savings set out in S.I. 2003/333.

M5 1998 c. 33. Section 71 was repealed by sections 456 and 457 of, and Schedules 11 and 12 to, the Proceeds of Crime Act 2002, subject to certain savings set out in S.I. 2003/333.

Claims for fees and disbursements by litigators – Crown Court E+W

5.—(1) Claims for fees by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 2 to these Regulations.

(2) Claims for disbursements by litigators in proceedings in the Crown Court or in proceedings in a magistrates' court which are subsequently committed or sent for trial to the Crown Court must be made and determined in accordance with the provisions of regulations 14 to 17.

(3) Subject to regulation 31, a claim by a litigator for fees in respect of work done pursuant to a section 16 determination must not be entertained unless the litigator submits it within three months of the conclusion of the proceedings to which it relates.

(4) Subject to paragraph (5), a claim by a litigator for fees in proceedings in the Crown Court must be submitted to the appropriate officer in such form and manner as the appropriate officer may direct and must be accompanied by the representation order and any receipts or other documents in support of any disbursement claimed.

(5) A claim under paragraph 20 or 26 of Schedule 2 to these Regulations must—

(a) summarise the items of work done by a fee earner in respect of which fees are claimed according to the classes specified in paragraph 26(2) of Schedule 2;

(b) state, where appropriate, the dates on which the items of work were done, the time taken, the sums claimed and whether the work was done for more than one assisted person;

(c) specify, where appropriate, the level of fee earner who undertook each of the items of work claimed; and

(d) give particulars of any work done in relation to more than one indictment or a retrial.

(6) Where the litigator claims that paragraph 29 of Schedule 2 applies in relation to an item of work, the litigator must give full particulars in support of the claim.

(7) The litigator must specify any special circumstances which the litigator considers should be drawn to the attention of the appropriate officer.

(8) The litigator must supply such further information and documents as the appropriate officer may require.

Proceedings in the Court of Appeal E+W

6.  Claims for fees by representatives in proceedings in the Court of Appeal must be made and determined in accordance with the provisions of Schedule 3 to these Regulations.

Proceedings in the Supreme Court E+W

7.—(1) In proceedings in the Supreme Court, the fees payable to a representative in respect of advice and assistance or representation made available to an individual in accordance with sections 15 or 16 of the Act must be determined by such officer as may be prescribed by order of the Supreme Court.

(2) Subject to paragraph (1), these Regulations do not apply to proceedings in the Supreme Court.

Claims for fees for certain categories of work to which the Standard Crime Contract applies E+W

8.—(1) This regulation applies to—

(a) advice and assistance provided pursuant to a determination made under section 13 or section 15 of the Act;

(b) representation in proceedings in a magistrates' court pursuant to a section 16 determination;

(c) representation pursuant to a section 16 determination in proceedings prescribed as criminal proceedings under section 14(h) of the Act; and

(d) representation in appeals by way of case stated to the High Court.

(2) Claims for fees in cases to which this regulation applies must—

(a) be made and determined in accordance with the 2010 Standard Crime Contract; and

(b) be paid in accordance with the rates set out in Schedule 4.

(3) In this regulation and in Schedule 4, “2010 Standard Crime Contract” means the contract so named between the Lord Chancellor and a person with whom the Lord Chancellor has made an arrangement under section 2(1) of the Act for the provision of advice, assistance and representation made available under sections 13, 15 and 16 of the Act M6 .

Marginal Citations

M6 A copy of the 2010 Standard Crime Contract is available at www.justice.gov.uk/legal-aid. Copies can be inspected at the Legal Aid Agency (Head Office), 102 Petty France, London, SW1H 9AJ.

Payments from other sources E+W

9.  Where representation is provided in respect of any proceedings, the representative, whether acting pursuant to a section 16 determination or otherwise, must not receive or be a party to the making of any payment for work done in connection with those proceedings, except such payments as may be made—

(a) by the Lord Chancellor; or

(b) in respect of any expenses or fees incurred in—

(i) preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or

(ii) obtaining any transcripts or recordings,

where an application under regulation 13 for an authority to incur such fees or expenses has been refused by a committee appointed under arrangements made by the Lord Chancellor to deal with, amongst other things, appeals of, or review of, assessment of costs.

Cases committed or sent for trial to the Crown Court E+W

10.—(1) Where a case is committed or sent for trial or transferred to the Crown Court, the payment in relation to work carried out in the magistrates' court is included within the applicable fee payable under Schedule 1 or Schedule 2.

(2) Paragraph (1) does not apply where the case is remitted to a magistrates' court.

Proceedings for contempt E+W

11.  Where representation is provided in proceedings referred to in section 14(g) of the Act (proceedings for contempt in the face of a court), the Lord Chancellor may only pay remuneration for services in accordance with Schedules 1, 2 and 3.

Notification of Very High Cost Cases E+W

12.—(1) A litigator who has conduct of a case which is, or is likely to be classified as, a Very High Cost Case, must notify the Lord Chancellor in writing as soon as practicable.

(2) Where a litigator fails to comply with this regulation without good reason, and as a result there is a loss to public funds, the Lord Chancellor may refuse payment of the litigator's costs up to the extent of such loss.

(3) The Lord Chancellor must not refuse payment under paragraph (2) unless the litigator has been given a reasonable opportunity to show why the payment should not be refused.

[F4 Fees in Very High Cost Cases E+W

12A.   Where services consisting of representation made available under section 16 of the Act (criminal legal aid) are provided in a case which is the subject of a Very High Cost Case contract, fees for that case must be paid—

(a) in accordance with the terms of that contract; and

(b) at the rates set out for the appropriate category and level of representative set out in Schedule 6 to these Regulations.]

Textual Amendments

F4 Reg. 12A inserted (2.12.2013) by The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 (S.I. 2013/2803), regs. 1, 3(5) (with reg. 4)

Authorisation of expenditure E+W

13.—(1) Where it appears to a litigator necessary for the proper conduct of proceedings in the Crown Court for costs to be incurred in relation to representation by taking any of the following steps—

(a) obtaining a written report or opinion of one or more experts;

(b) employing a person to provide a written report or opinion (otherwise than as an expert);

(c) obtaining any transcripts or recordings; or

(d) performing an act which is either unusual in its nature or involves unusually large expenditure,

the litigator may apply to the Lord Chancellor for prior authority to do so.

(2) Where the Lord Chancellor authorises the taking of any step referred to in paragraph (1), the Lord Chancellor shall also authorise the maximum to be paid in respect of that step.

(3) A representative assigned to an assisted person in any proceedings in the Crown Court may apply to the Lord Chancellor for prior authority for the incurring of travelling and accommodation expenses in order to attend at the trial or other main hearing in those proceedings.

Interim payment of disbursements E+W

14.—(1) A litigator may submit a claim to the appropriate officer for payment of a disbursement for which the litigator has incurred liability in proceedings in the Crown Court, or in proceedings in a magistrates' court which are subsequently committed or sent for trial or transferred to the Crown Court, in accordance with the provisions of this regulation.

(2) A claim for payment under paragraph (1) may be made where—

(a) a litigator has obtained prior authority to incur expenditure of £100 or more under regulation 13; and

(b) the litigator has incurred such a liability.

(3) Without prejudice to regulation 17(4) and (5) a claim for payment under paragraph (1) must not exceed the maximum amount authorised under the prior authority.

(4) A claim for payment under paragraph (1) may be made at any time before the litigator submits a claim for fees under regulation 5.

(5) A claim for payment under paragraph (1) must be submitted to the appropriate officer in such form and manner as the appropriate officer may direct and must be accompanied by the authority to incur expenditure and any invoices or other documents in support of the claim.

(6) Subject to regulation 16, the appropriate officer must allow the disbursement subject to the limit in paragraph (3) if it appears to have been reasonably incurred in accordance with the prior authority.

(7) The appropriate officer must notify the litigator and, where the disbursement claimed includes the fees or charges of any person, may notify that person of the appropriate officer's decision.

(8) Where the appropriate officer allows the disbursement, the appropriate officer must notify the litigator and, where the disbursement includes the fees or charges of any person, may notify that person, of the amount payable, and must authorise payment to the litigator accordingly.

(9) Regulations 28 to 30 do not apply to a payment under this regulation.

Interim disbursements and final determination of fees E+W

15.—(1) On a final determination of fees, regulations 5(2) and 17 apply notwithstanding that a payment has been made under regulation 14.

(2) Where the amount found to be due under regulation 17 in respect of a disbursement is less than the amount paid under regulation 14 (“the interim payment”), the appropriate officer must deduct the difference from the sum otherwise payable to the litigator on the determination of fees, and where the amount due under regulation 17 exceeds the interim payment, the appropriate officer must add the difference to the amount otherwise payable to the litigator.

Expert services E+W

16.—(1) Subject to paragraph (2), the Lord Chancellor may provide for the payment of expert services only at the fixed fees or at rates not exceeding the rates set out in Schedule 5.

(2) The appropriate officer may, in relation to a specific claim, increase the fixed fees or rates set out in Schedule 5 if that officer considers it reasonable to do so in exceptional circumstances.

(3) For the purposes of paragraph (2), exceptional circumstances are where the expert's evidence is key to the client's case and either—

(a) the complexity of the material is such that an expert with a high level of seniority is required; or

(b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.

Determination of litigators' disbursements E+W

17.—(1) Subject to paragraphs (2) to (5), the appropriate officer must allow such disbursements claimed under regulation 5(2) as appear to the appropriate officer to have been reasonably incurred.

(2) If the disbursements claimed are abnormally large by reason of the distance of the court or the assisted person's residence or both from the litigator's place of business, the appropriate officer may limit reimbursement of the disbursements to what otherwise would, having regard to all the circumstances, be a reasonable amount.

(3) No question as to the propriety of any step or act in relation to which prior authority has been obtained under regulation 13 may be raised on any determination of disbursements, unless the litigator knew or ought reasonably to have known that the purpose for which the authority was given had failed or had become irrelevant or unnecessary before the disbursements were incurred.

(4) Where disbursements are reasonably incurred in accordance with and subject to the limit imposed by a prior authority given under regulation 13, no question may be raised on any determination of fees as to the amount of the payment to be allowed for the step or act in relation to which the authority was given.

(5) Where disbursements are incurred in taking any steps or doing any act for which authority may be given under regulation 13, without such authority having been given or in excess of any fee so authorised, payment in respect of those disbursements may nevertheless be allowed on a determination of disbursements payable under regulation 5.

(6) Paragraph (7) applies where the Lord Chancellor receives a request for funding of an expert service of a type not listed in Schedule 5.

(7) In considering the rate at which to fund the expert service the Lord Chancellor—

(a) must have regard to the rates set out in Schedule 5; and

(b) may require more than one quotation for provision of the service to be submitted to the Lord Chancellor.

Interim payments in cases awaiting determination of fees E+W

18.—(1) The appropriate officer must authorise an interim payment in respect of a claim for fees in proceedings in the Crown Court in accordance with this regulation.

(2) Entitlement to a payment arises in respect of a claim for fees by an instructed advocate, where—

(a) the graduated fee claimed in accordance with Schedule 1 is £4,000 or more (exclusive of value added tax); and

(b) the claim for fees is for less than the amount mentioned in sub-paragraph (a) but is related to any claim for fees falling under sub-paragraph (a).

(3) For the purposes of this regulation, the following claims for fees are related to each other—

(a) the claims of instructed advocates acting in the same proceedings for a defendant; and

(b) the claims of any instructed advocate acting for any assisted person in related proceedings.

(4) Entitlement to a payment under paragraph (1) does not arise until three months have elapsed from the earlier of—

(a) the date on which the claim for fees is received by the appropriate officer for determination, except that where there are related claims for fees, the date on which the last claim is received by the appropriate officer; or

(b) three months after the conclusion of the last of any related proceedings.

(5) An instructed advocate may submit a claim for an interim payment under this regulation where—

(a) no payment has been made under paragraph (1); and

(b) six months have elapsed from the conclusion of the proceedings against the assisted person.

(6) Subject to regulation 31, payment must not be made under this regulation unless the instructed advocate has submitted a claim for fees in accordance with regulation 4(3).

Amount of interim payments in cases awaiting determination of fees E+W

19.—(1) Where entitlement to an interim payment arises under regulation 18, the amount payable is 40% of the total claim for fees, less any sum already paid.

(2) Regulations 28 to 30 do not apply to an interim payment under this regulation.

Staged payments in long Crown Court proceedings E+W

20.—(1) An instructed advocate may submit a claim to the appropriate officer for a staged payment of the instructed advocate's fees in relation to proceedings in the Crown Court.

(2) Where a claim is submitted in accordance with this regulation, a staged payment must be allowed where the appropriate officer is satisfied—

(a) that the claim relates to fees for a period of preparation of 100 hours or more, for which the instructed advocate will, subject to final determination of the fees payable, be entitled to be paid in accordance with Schedule 1; and

(b) that the period from committal, or sending for trial or transfer (or from the date of the section 16 determination, if later) to the conclusion of the Crown Court proceedings is likely to exceed 12 months, having regard, amongst other matters, to the number of defendants, the anticipated pleas and the weight and complexity of the case.

(3) In this regulation, “preparation” means—

(a) reading the papers in the case;

(b) contact with prosecutors;

(c) written or oral advice on plea;

(d) researching the law, preparation for examination of witnesses and preparation of oral submissions;

(e) viewing exhibits or undisclosed material at police stations;

(f) written advice on evidence;

(g) preparation of written submissions, notices or other documents for use at the trial;

(h) attendance at views at the scene of the alleged offence,

and is limited to preparation done before the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987 (commencement of trial and arraignment), in which case it is limited to preparation done before the date on which the jury is sworn (or on which it became certain, by reason of pleas of guilty or otherwise, that the matter would not proceed to trial).

(4) The amount allowed for preparation falling within paragraph (3) must be determined by reference to the number of hours of preparation which it appears to the appropriate officer, without prejudice to the final determination of the fees payable, has been reasonably done, multiplied by the hourly rate for special preparation as set out in the table following paragraph 24 of Schedule 1, as appropriate to the category of advocate.

(5) A claim for staged payment of fees under this regulation must be made to the appropriate officer in such form and manner as the appropriate officer may direct, including such case plan as the appropriate officer may require for the purposes of paragraph (2)(a).

(6) An instructed advocate may claim further staged payments in accordance with this regulation in respect of further periods of preparation exceeding 100 hours which were not included in an earlier claim.

(7) Regulations 28 to 30 do not apply to a payment under this regulation.

Hardship payments E+W

21.—(1) Subject to paragraphs (5) and (6), the appropriate officer may allow a hardship payment to a representative in the circumstances set out in paragraph (2).

(2) Those circumstances are that the representative—

(a) represents the assisted person in proceedings in the Crown Court;

(b) applies for such payment, in such form and manner as the appropriate officer may direct, not less than six months after the representative was first instructed in those proceedings, or in related proceedings if the representative was instructed in those proceedings earlier than in the proceedings to which the application relates;

(c) is unlikely to receive final payment in respect of the proceedings, as determined under Schedule 1 or 2, within the three months following the application for the hardship payment; and

(d) satisfies the appropriate officer that, by reason of the circumstance in sub-paragraph (c), the representative is likely to suffer financial hardship.

(3) Every application for a hardship payment by an advocate must be accompanied by such information and documents as the appropriate officer may require as evidence of—

(a) the work done by the advocate in relation to the proceedings up to the date of the application; and

(b) the likelihood of financial hardship.

(4) Every application for a hardship payment by a litigator must be accompanied by such information and documents as the appropriate officer may require as evidence of—

(a) the Class of Offence with which the assisted person is charged, in accordance with Part 7 of Schedule 1;

(b) the length of trial, where appropriate;

(c) the number of pages of prosecution evidence, determined in accordance with paragraph 1(2) of Schedule 2;

(d) the total number of defendants in the proceedings who are represented by the litigator;

(e) the likelihood of financial hardship.

(5) The amount of any hardship payment is at the discretion of the appropriate officer, but must not exceed such sum as would be reasonable remuneration for the work done by the representative in the proceedings up to the date of the application.

(6) A hardship payment must not be made if it appears to the appropriate officer that the sum which would be reasonable remuneration for the representative, or the sum required to relieve the representative's financial hardship, is less than £5,000 (excluding value added tax).

(7) Where the appropriate officer allows a hardship payment under paragraph (1), the appropriate officer must authorise payment accordingly.

(8) Where the application for a hardship payment is made by an advocate other than an instructed advocate, and the appropriate officer allows a hardship payment under paragraph (1)—

(a) payment must be made to the leading instructed advocate or the led instructed advocate, as appropriate; and

(b) the appropriate officer must notify the advocate who made the application that payment has been made to the instructed advocate.

Computation of final claim where an interim payment has been made E+W

22.—(1) At the conclusion of a case in which one or more payments have been made to an instructed advocate or a litigator under regulations 18 to 21, the instructed advocate or litigator must submit a claim under regulation 4 or 5 for the determination of the overall remuneration, whether or not such a claim will result in any payment additional to those already made.

(2) In the determination of the amount payable to an instructed advocate or litigator under regulation 4 or 5—

(a) the appropriate officer must deduct the amount of any payment made under regulations 18 to 21 in respect of the same case from the amount that would otherwise be payable; and

(b) if the amount of the interim payment is greater than the amount that would otherwise be payable, the appropriate officer may recover the amount of the difference, either by way of repayment by the instructed advocate or litigator or by way of deduction from any other amount that may be due to the instructed advocate or litigator.

Payment of fees to advocates – Crown Court E+W

23.—(1) Having determined the fees payable to each instructed advocate, in accordance with Schedule 1, the appropriate officer must notify each instructed advocate of the fees payable and authorise payment accordingly.

(2) Where, as a result of any redetermination or appeal made or brought pursuant to regulations 28 to 30, the fees payable under paragraph (1) are altered—

(a) if they are increased, the appropriate officer must authorise payment of the increase; or

(b) if they are decreased, the instructed advocate must repay the amount of such decrease.

(3) Where the payment of any fees of an instructed advocate is ordered under regulation 29(12) or regulation 30(8), the appropriate officer must authorise payment.

Payment of fees to litigators – Crown Court E+W

24.—(1) Having determined the fees payable to a litigator in accordance with Schedule 2, the appropriate officer must authorise payment accordingly.

(2) Where the appropriate officer determines that the fees payable under paragraph (1) are greater than or less than the amount claimed by the litigator under regulation 5(1), the appropriate officer must notify the litigator of the amount the appropriate officer has determined to be payable.

(3) Where, as a result of any redetermination or appeal made or brought pursuant to regulations 28 to 30, the fees payable under paragraph (1) are altered—

(a) if they are increased, the appropriate officer must authorise payment of the increase; or

(b) if they are decreased, the litigator must repay the amount of such decrease.

(4) Where the payment of any fees of the litigator is ordered under regulation 29(12) or regulation 30(8), the appropriate officer must authorise payment.

Recovery of overpayments E+W

25.—(1) This regulation applies where a representative is entitled to be paid a certain sum (“ the amount due”) by virtue of the provisions of Schedule 1, 2 or 3 and, for whatever reason, the representative is paid an amount greater than that sum.

(2) Where this regulation applies, the appropriate officer may—

(a) require immediate repayment of the amount in excess of the amount due (“the excess amount”); or

(b) deduct the excess amount from any other sum which is or becomes payable to the representative by virtue of the provisions of Schedule 1, 2 or 3,

and where sub-paragraph (a) applies the representative must repay the excess amount to the appropriate officer.

(3) The appropriate officer may proceed under paragraph (2)(b) without first proceeding under paragraph (2)(a).

(4) Paragraph (2) applies notwithstanding that the representative to whom the excess amount was paid is exercising, or may exercise, a right under regulations 28 to 30.

Adverse observations E+W

26.—(1) Where in any proceedings to which Schedule 1, 2 or 3 applies, the court makes adverse observations concerning a representative's conduct of the proceedings, the appropriate officer may reduce any fee which would otherwise be payable in accordance with Schedule 1, 2 or 3 by such proportion as the appropriate officer considers reasonable.

(2) Before reducing the fee payable to a representative in accordance with the provisions of paragraph (1), the appropriate officer must give the representative the opportunity to make representations about whether it is appropriate to reduce the fee and the extent to which the fee should be reduced.

Wasted costs orders E+W

27.—(1) Subject to paragraph (2), where the court has disallowed the whole or any part of any wasted costs under section 19A of the Prosecution of Offences Act 1985 M7 (costs against legal representatives etc), the appropriate officer, in determining fees in respect of work done by the representative against whom the wasted costs order was made, may deduct the amount in the wasted costs order from the amount otherwise payable in accordance with these Regulations.

(2) Where the appropriate officer, in accordance with this regulation, is minded to disallow any amount of a claim for work done to which the wasted costs order relates, the appropriate officer must disallow that amount or the amount of the wasted costs order, whichever is the greater.

Marginal Citations

M7 1985 c. 23. Section 19A was inserted by section 111 of the Courts and Legal Services Act 1990 (c. 41).

Redetermination of fees by appropriate officer E+W

28.—(1) Where—

(a) an advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow any of the following fees, or with the number of hours allowed in the calculation of such a fee, namely—

(i) a special preparation fee under paragraph 17 of Schedule 1; or

(ii) a wasted preparation fee under paragraph 18 of Schedule 1; or

(b) an instructed advocate in proceedings in the Crown Court is dissatisfied with—

(i) the decision not to allow an hourly fee in respect of attendance at conferences or views at the scene of the alleged offence under paragraph 19 of Schedule 1, or with the number of hours allowed in the calculation of such a fee;

(ii) the calculation by the appropriate officer of the fee payable to the instructed advocate in accordance with Schedule 1; or

(iii) the decision of the appropriate officer under paragraph 3(3) of Schedule 1 (reclassification of an offence not specifically listed in the relevant Table of Offences and so deemed to fall within Class H); or

(c) a litigator is dissatisfied with—

(i) the calculation by the appropriate officer of the fee payable to the litigator in accordance with Schedule 2; or

(ii) the decision of the appropriate officer under paragraph 3(3) of Schedule 2 (reclassification of an offence not specifically listed in the relevant Table of Offences and so deemed to fall within Class H),

the advocate, instructed advocate or litigator, as the case may be, may apply to the appropriate officer to redetermine those fees, to review that decision or to reclassify the offence, as appropriate.

(2) An application under paragraph (1) may not challenge the quantum of any of the fees set out in Schedule 1 or Schedule 2.

(3) Subject to regulation 31, an application under paragraph (1), or paragraph 11(1) of Schedule 3, must be made—

(a) within 21 days of the receipt of the fees payable under regulation 23, regulation 24 or paragraph 10 of Schedule 3, as appropriate;

(b) by giving notice in writing to the appropriate officer, specifying the matters in respect of which the application is made and the grounds of objection; and

(c) in such form and manner as the appropriate officer may direct.

(4) The notice of application must be accompanied by the information and documents supplied under regulation 4, regulation 5 or Schedule 3, as appropriate.

(5) The notice of application must state whether the applicant wishes to appear or to be represented and, if the applicant so wishes, the appropriate officer must notify the applicant of the hearing date and time.

(6) The applicant must supply such further information and documents as the appropriate officer may require.

(7) The appropriate officer must, in the light of the objections made by the applicant or on behalf of the applicant—

(a) redetermine the fees, whether by way of confirmation, or increase or decrease in the amount previously determined;

(b) confirm the classification of the offence within Class H; or

(c) reclassify the offence,

as the case may be, and must notify the applicant of his decision.

(8) Where the applicant so requests, the appropriate officer must give reasons in writing for the appropriate officer's decision.

(9) Subject to regulation 31, any request under paragraph (8) must be made within 21 days of receiving notification of the appropriate officer's decision under paragraph (7).

Appeals to a Costs Judge E+W

29.—(1) Where the appropriate officer has given his reasons for his decision under regulation 28(8), a representative who is dissatisfied with that decision may appeal to a Costs Judge.

(2) Subject to regulation 31, an appeal under paragraph (1) or paragraph 11(2) of Schedule 3 must be instituted within 21 days of the receipt of the appropriate officer's reasons, by giving notice in writing to the Senior Costs Judge.

(3) The appellant must send a copy of any notice of appeal given under paragraph (2) to the appropriate officer.

(4) The notice of appeal must be accompanied by—

(a) a copy of any written representations given under regulation 28(3);

(b) the appropriate officer's reasons for the appropriate officer's decision given under regulation 28(8); and

(c) the information and documents supplied to the appropriate officer under regulation 28.

(5) The notice of appeal must—

(a) be in such form as the Senior Costs Judge may direct;

(b) specify separately each item appealed against, showing (where appropriate) the amount claimed for the item, the amount determined and the grounds of the objection to the determination; and

(c) state whether the appellant wishes to appear or to be represented or whether the appellant will accept a decision given in the appellant's absence.

(6) The Senior Costs Judge may, and if so directed by the Lord Chancellor either generally or in a particular case must, send to the Lord Chancellor a copy of the notice of appeal together with copies of such other documents as the Lord Chancellor may require.

(7) With a view to ensuring that the public interest is taken into account, the Lord Chancellor may arrange for written or oral representations to be made on the Lord Chancellor's behalf and, if the Lord Chancellor intends to do so, the Lord Chancellor must inform the Senior Costs Judge and the appellant.

(8) Any written representations made on behalf of the Lord Chancellor under paragraph (7) must be sent to the Senior Costs Judge and the appellant and, in the case of oral representations, the Senior Costs Judge and the appellant must be informed of the grounds on which such representations will be made.

(9) The appellant must be permitted a reasonable opportunity to make representations in reply.

(10) The Costs Judge must inform the appellant (or the person representing him) and the Lord Chancellor, where representations have been or are to be made on the Lord Chancellor's behalf, of the date of any hearing and, subject to the provisions of this regulation, may give directions as to the conduct of the appeal.

(11) The Costs Judge may consult the trial judge or the appropriate officer and may require the appellant to provide any further information which the Costs Judge requires for the purpose of the appeal and, unless the Costs Judge otherwise directs, no further evidence may be received on the hearing of the appeal and no ground of objection may be raised which was not raised under regulation 28.

(12) The Costs Judge has the same powers as the appropriate officer under these Regulations and, in the exercise of such powers, may alter the redetermination of the appropriate officer in respect of any sum allowed, whether by increasing or decreasing it, as the Costs Judge thinks fit.

(13) The Costs Judge must communicate his decision and the reasons for it in writing to the appellant, the Lord Chancellor and the appropriate officer.

(14) Where the Costs Judge increases the sums redetermined under regulation 28, the Costs Judge may allow the appellant a sum in respect of part or all of any reasonable costs incurred by the appellant in connection with the appeal (including any fee payable in respect of an appeal).

Appeals to the High Court E+W

30.—(1) A representative who is dissatisfied with the decision of a Costs Judge on an appeal under regulation 29 may apply to a Costs Judge to certify a point of principle of general importance.

(2) Subject to regulation 31, an application under paragraph (1) or paragraph 11(3) of Schedule 3 must be made within 21 days of receiving notification of a Costs Judge's decision under regulation 29(13).

(3) Where a Costs Judge certifies a point of principle of general importance the appellant may appeal to the High Court against the decision of a Costs Judge on an appeal under regulation 29, and the Lord Chancellor must be a respondent to such an appeal.

(4) Subject to regulation 31, an appeal under paragraph (3) must be instituted within 21 days of receiving notification of a Costs Judge's certificate under paragraph (1).

(5) Where the Lord Chancellor is dissatisfied with the decision of a Costs Judge on an appeal under regulation 29, the Lord Chancellor may, if no appeal has been made by an appellant under paragraph (3), appeal to the High Court against that decision, and the appellant must be a respondent to the appeal.

(6) Subject to regulation 31, an appeal under paragraph (5) must be instituted within 21 days of receiving notification of the Costs Judge's decision under regulation 29(13).

(7) An appeal under paragraph (3) or (5) must—

(a) be brought in the Queen's Bench Division;

(b) subject to paragraph (4), follow the procedure set out in Part 52 of the Civil Procedure Rules 1998 M8 ; and

(c) be heard and determined by a single judge whose decision will be final.

(8) The judge has the same powers as the appropriate officer and a Costs Judge under these Regulations and may reverse, affirm or amend the decision appealed against or make such other order as the judge thinks fit.

Marginal Citations

M8 S.I. 1998/3132. There are relevant amendments in S.I. 2000/221 and 2092, 2003/2113 and 3361, 2004/2072, 2005/3515, 2006/1689 and 3435, 2007/2204, 2009/2092 and 3390, 2010/1953 and 2012/2208.

Time limits E+W

31.—(1) Subject to paragraph (2), the time limit within which any act is required or authorised to be done under these Regulations may, for good reason, be extended—

(a) in the case of acts required or authorised to be done under regulations 29 or 30, by a Costs Judge or the High Court as the case may be; and

(b) in the case of acts required or authorised to be done by a representative under any other regulation, by the appropriate officer.

(2) Where a representative without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the appropriate officer, a Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit and must consider whether it is reasonable in the circumstances to reduce the fees payable to the representative under regulations 4, 5 or 6, provided that the fees must not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the fees should not be reduced.

(3) A representative may appeal to a Costs Judge against a decision made under this regulation by an appropriate officer and such an appeal must be instituted within 21 days of the decision being given by giving notice in writing to the Senior Costs Judge specifying the grounds of appeal.

Signed by authority of the Lord Chancellor

McNally

Minister of State

Ministry of Justice