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The Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPOâ€)
LASPO represents the most profound change in the provision of Legal Aid for decades. It repealed the Legal Aid aspects of the Access to Justice Act 1999 and brought in an entirely new statutory regime from 1 April 2013.
The Legal Services Commission closed on 31 March 2013 and on 1 April 2013 its replacement, the Legal Aid Agency came into existence.
Cases started before 1 April 2013 remain subject to the Access to Justice Act regime whereas cases started on or after 1 April 2013 are subject to the new LASPO regime.
The Access to Justice Act provided that work was “in scope†unless specifically excluded by the Act.
LASPO provides that only work specifically included in Schedule 1 is “in scopeâ€.
Unfortunately, Schedule 1, which sets out what work will be in scope, is not easily understood; it requires a certain amount of cross-referencing and navigation of double negatives in order to understand whether a case is in fact in or out of scope.
When considering whether a case is in scope solicitors will need to check that it is included in Part One (of Schedule 1) but is not excluded by Part Two and that the venue is included in Part Three if advocacy services are to be provided.
In addition to LASPO the changes are governed by various sets of regulations including the Civil Legal Aid Procedure Regulations 2012 and the Civil Legal Aid (Merits Criteria) Regulations 2013 in addition to the Remuneration Regs and the Legal Aid Eligibility Regs.
LASPO provides exceptionally for legal aid to be approved for a case that falls outside the scope of Legal Aid. The Exceptional Cases Funding team has been set up to handle applications made under this provision.
The LAA is expecting an average of 6,500 applications per annum for Exceptional Cases Funding and there is a new form ECF1 which will need to state the case as to why a particular matter is exceptional. However, there is no payment for any work done until such time as the application succeeds.
For further details on applications for Exceptional Case Determination and a new survey on the impact of LASPO on solicitors please click here.
Jim Knight, Partner and Costs Lawyer
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Statements of Costs for Detailed Assessment Proceedings
Paragraph 45.3 of Section 45 of the Costs Practice Direction supplementing CPR Rule 47.18 states that no party should file or serve a Statement of Costs of the detailed assessment proceedings unless the Court orders.
Traditionally this meant that at the end of the detailed assessment hearing, when it came to deciding the issue of liability and quantum of costs of the assessment, the successful party would hand over a Statement of Costs to the paying party and the Court and a summary assessment of those costs would follow.
From 1st April 2013 the question of liability for costs of detailed assessment proceedings is covered by Rule 47.20 of the Civil Procedure (Amendment) Rules 2013.
There still appears to be some confusion in relation to the transitional arrangements and it is unhelpful that at the time of writing the Justice website does not contain Practice Direction 47.
Part 22 of the new rules contains transitional provisions and helpfully points out that provisions made by the new Rule 47.20(1) to (5) and (7) do not apply to detailed assessments commenced before 1st April 2013, and in relation to such detailed assessments Rules 47.18 and 47.19 as they were in force immediately before 1st April 2013 apply.
Therefore, if a Notice of Commencement was served before 1st April 2013 there is no need to serve a Statement of Costs of Detailed Assessment Proceedings.
However, if relation to Notices of Commencement served after 1st April 2013, it does not appear that the practice direction exists or is likely to exist.
An informal enquiry was made to one of the costs officers at the Senior Court Costs Office who expressed a view that it was not understood why there was a special provision for Statements of Costs for Detailed Assessment or why it was not necessary to serve the Statement of Costs with at least 24 hours clear notice prior to the hearing as with other costs schedules for summary assessment.
Whilst there are still many questions surrounding the implementation of the new rules and the transitional arrangements, the best advice is that when attending a detailed assessment hearing for a procedure which commenced after 1st April 2013, prepare your Statement of Costs and serve it with at least 24 hours notice prior to the detailed assessment hearing.
James Scott, Partner and Costs Lawyer
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Part 36 offers made in respect of Costs after 1 April 2013
The new rules governing Part 36 offers made in respect of costs do not apply to detailed assessments “commenced†before 1 April 2013.
The transitional provision concerning Part 47.19 offers confirm this. They can be found tucked away in the Transitional Provisions to the Civil Procedure (Amendment) Rules 2013 at s 22(1):
“The provision made by rule 47.20(1) to (5) and (7) in the Schedule (liability for costs of detailed assessment proceedings) does not apply to detailed assessments commenced before 1 April 2013 and in relation to such detailed assessments, rules 47.18 and 47.19 as they were in force immediately before 1 April 2013 apply instead.â€
This is a very important provision as Part 36 has now been incorporated into detailed assessment proceedings by CPR 47.20(4). However, that section is expressly excluded from cases where detailed assessment is commenced pre-1 April 2013 by the transitional provision referred to above.
Surprisingly, this provision is not contained within the body of the CPR or the Practice Direction to the new CPR 47 (concerning Procedure for Detailed Assessment of Costs and Default Provisions). Nor is it contained within the Transitional Provisions section of the Practice Direction to the new CPR 48. Inevitably this has led to some understandable confusion among Solicitors and Costs Lawyers alike.
It is however clear that under the transitional provisions for cases where detailed assessment proceedings were commenced before 1 April 2013, a party cannot make a Part 36 offer in respect of costs (or repeat a previous offer as a Part 36 offer) post 1 April 2013 and expect it to have the effect of a valid Part 36 offer.
For the avoidance of doubt, Assessment proceedings are commenced by serving a signed Bill and formal Notice of Commencement.
Jim Knight, Partner and Costs Lawyer
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Costs Budgeting - all you need to know...
We found HHJ Simon Brown's three part online guide to costs budgeting really useful and think you will too. Just click the links below to read it on New Law Journal's website while it's free:
Part 1 - Costs budgeting: Teaching old dogs new tricks
Part 2 - Costs budgeting: Teaching old dogs new tricks (pt 2)
Part 3 - Costs budgeting: Proportionality is trumps
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Harmans are always on hand for any questions or queries you may have and we will do our utmost to help you with any problems you may encounter post Jackson. We are also geared up to assist you in dealing with your costs budgets whether it be the actual preparation or advice for the completion of the document. We are continually updating our website with news and developments as well as sharing our views on Twitter and LinkedIn.
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Our team is limbering up for this year's London Legal Walk
on 20 May.
Hope to see you there too!
It's not too late to sponsor us here.
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FREE LEGAL COSTS ADVICE!
Follow us on Twitter @HarmansCosts for the latest industry comment. We also hold regular Q&A sessions when you can ask our legal costs experts a question.
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