Abney Garsden McDonald solicitors

Legal Aid Pitfalls

by Samantha Follows of Abney Garsden McDonald solicitors as appeared in the ACAL Newsletter of  January 2002

For the majority of Claimants in personal injury child abuse actions, Legal Aid remains an essential source of funding. Certainly within our firm, in excess of 90% of claims are funded in this way. Time will tell whether the new financial eligibility rules, to come into force in December, will increase the number of Claimants eligible for Legal Aid.

The process of applying for Legal Aid can be arduous, especially for clients who may be baffled by the forms, so careful guidance through them may be necessary. In addition, in my view, one can never include too much information. This is especially important where the claim is not straight forward, for example in a foster parent claim and/or what is likely to be a “stand alone” claim. Providing as much information as possible, together with relevant documents such as police statements, will greatly assist the Legal Services Commission in assessing the application. In cases where there appear to be problems initially, such as where identifying a defendant is difficult, applying for a certificate limited to investigation only may be appropriate.

There have been indications that, as a result of the Lister decision, the Legal Services Commission are treating applications more favourably. However, some degree of corroboration is still desirable and should be borne in mind when submitting applications.

Assuming that your client has been granted a Legal Aid Certificate, it may not all be plain sailing thereafter. The costs limitation on recently granted certificates is often insufficient. It is not unusual for the certificate to be limited to £2,500. However, if one considers the disbursements which will be incurred at an early stage, such as a psychologist’s report fee in the region of £1,000, Counsel’s advice and possible issue fee of £350, this does not leave a lot of room for any work to be done under the certificate! Therefore, I would recommend that early on an APP 8 be completed to apply for the costs limitation to be increased. The time spent in completing the APP 8, and indeed any other Legal Aid forms, should be recorded on the file.

Careful checking of the work authorised under the certificate is also necessary. A certificate will usually be initially limited to obtaining further evidence and Counsel’s opinion. This will often allow the obtaining of a psychologist’s report without prior authority. However, it may become necessary to issue proceedings in order to protect the client’s position on limitation at an early stage. If the certificate is not amended to do this, there will be difficulty in recovering the costs incurred from the Legal Services Commission subsequently.

A further problem which may arise is where the case for whatever reason does not proceed, usually upon receipt of an unfavourable Counsel’s opinion. For example, the certificate may be limited to £5,000, and the recorded work in progress and disbursements together may not exceed this sum. However, it is usual to claim an enhancement/uplift on costs, which may exceed the limit, especially where 50% is claimed. The total costs claimed may therefore exceed the limit, and may be allowed on assessment, but the Legal Services Commission will only pay up to the limit shown on the certificate. To avoid this problem, when an APP 8 is submitted, try to make sure that the enhancement on top of work on progress has been calculated, and indicate that you will be claiming it on the form. The enhancement can often add a substantial sum to the costs figure and the Legal Services Commission should allow an increase in the costs limitation on this basis.

Finally, a word of warning in relation to cases which do not proceed but where proceedings have been issued, necessitating assessment of costs by the Court. The bill may be provisionally assessed by a District Judge who has no or little experience of dealing with child abuse claims. As a result, the solicitor may find that the enhancement claimed is reduced or even disallowed, and the preparation time may be considered excessive. A detailed letter of instruction if the file is being sent to an external costs draughtsman can help prevent this problem. If the client has particular problems, such as mental health problems, this can be referred to in the bill and the District Judge will understand why a lot of time was spent, for example in attendances with the client. It is not always clear to the costs draughtsman from the file what the difficulties with a particular client were, so they should be spelt out in the covering letter.

If the bill is reduced on provisional assessment, I would recommend requesting a hearing, and making sure that time is spent beforehand preparing fully for the hearing. Articles on dealing with child abuse claims in general can be useful for the District Judge new to the area, and will pay dividends for the assessment of further claims.

This article was written by Samantha Follows, a solicitor with Abney Garsden McDonald, Cheadle Hulme who specialises in individual child abuse claims.

Privacy Statement