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Legal Aid, Private Fees and Costs

General

Much of the type of work that criminal solicitors and barristers undertake, is paid for by the Government and there are a number of different schemes that the Government uses to control this budget. Ultimately the aim is to ensure everyone in the community has access to justice and that those who cannot afford to defend themselves, are assisted by the Government.

However, the Government will not pay for every type of work or for every client. Those who do not qualify for financial assistance with their fees, will have to pay some or all of them personally. This article explains the different types of Government assistance and how solicitors will normally calculate fees, if a client has to pay them out of their own pocket.

This is a complicated area to understand and the rules regarding legal aid are constantly changing. Use this as a guide only to assist you in your discussions with your solicitor, who will advise you if the system has changed since this article was written.

Not all firms have a “Legal Aid Franchise” and without this they cannot offer you government assistance through legal aid. Anyone instructing these firms will have to pay for their services privately.

Police station representation

Any person who is arrested and taken to a police station, will automatically qualify for free legal advice. There is a Government scheme whereby a “Duty Solicitor” is available on 24 hours a day call-out to a police station. Anyone choosing to call their own solicitor, rather than use the duty solicitor, may still be covered, as long as their solicitor works within a firm that has a legal aid franchise. The Government will pay his fees and if the matter stops there, you will have no fees to pay.

If a person is taken to the police station for interview, and they are not arrested but still require a solicitor, they may be entitled to free help but it will depend on the facts of the case. If you find yourself in this situation, then your solicitor will go through your case and advise you accordingly.

Legal Aid Representation Order

If a case goes to court, then an application can be made for a Representation Order. Criminal Solicitor’s who work in a “Legal Aid Franchise” firm, will be able to help defendants to complete the application form particularly if the defendant is in custody or is a youth (under 18).

If the suspect is an adult on bail then they will need to make an application for legal aid using the forms provided by the court.

There are two tests in the forms

  • Is the case deserving of legal aid?
  • Has the Defendant the ability to cover his own costs?

If you are in this situation a criminal solicitor will be happy to advise you if your case is likely to pass the “interest of justice test” as it is known. There are questions about how serious the offence(s) are, what the likely sentence might be and whether the suspect has ever been in trouble before. There are also questions about whether the suspect might need help, whether they suffer from any kind of disability or will have problems understanding the court proceedings for any other reason, e.g. if English is not their first language.

The means test is calculated by the court and is very complicated but if you would like initial advice as to whether you are likely to be eligible then you should ask the criminal solicitor representing you.

What is covered by a Representation Order

If a Representation Order is granted, it is forwarded to the criminal solicitor who is instructed in the case. The solicitor will then write to his client advising him/her of this. If this happens, all of the work the Solicitor does in preparing the case, going to court, speaking to witnesses, making telephone call, writing letters, etc., will be covered by the Order.

If the case goes to the Crown Court, the solicitor can apply to extend the Order to cover those proceedings as well. The Order will also be extended to cover the costs of a specialist Crown Court lawyer, such as a barrister or solicitor-advocate. If there is unusual work that has to be done, then the solicitor can apply for special permission, called ‘prior authority’, to incur the expense of that work. For example, if the solicitor needs to get a report from an expert, such as a psychiatrist or a forensic scientist.

Criminal solicitors are not allowed to bill part of their work to the Government and part of it to a client. If, for any reason, the Government refused to pay for work that the client insists is vital to his case either the client will have to pay all of the fees privately from that point on, or forgo the extra specialist work.

Private fees

If a criminal solicitor does work for a client that is not covered by any form of Government funding, then the client will be responsible for paying the fees for that work directly to the solicitor. This might be in relation to a second matter where the defendant needs assistance, whilst they are covered by legal aid for another offence. It also may include work carried out in an effort to obtain a Representation Order which is unsuccessful because the client failed to supply requested information. Criminal solicitors will have their client’s best interest at heart. It can be difficult in the current economic climate to get a Representation Order granted, so he will need full co-operation in the application.

Most solicitors calculate their private fees on the basis of time spent on a case. The current hourly rate for partners is anywhere from £100 to £180 and for other solicitors in our criminal department it can be from £50 to £150 per hour. Naturally the more senior solicitors are more expensive than the juniors. The rates for London are higher than for the rest of the country. Solicitors will usually bill you in units of one tenth of an hour, i.e. each unit of six minutes by a partner will be billed at £10 / £18, based on the example above. These figures do not include VAT, which will be added to the bill. Each solicitor, at the start of a case, will confirm his charges in writing to his client, as part of his professional undertaken to the client.

It can be very difficult to give an estimate of costs at the start of a case but criminal solicitors will usually try to give the best estimate that they can. Subsequently, they will advise if the estimate that they given at the start is close to being exceeded. If a case is particularly lengthy, the client can expect to be informed every six months or so, of the amount of costs and disbursements that have built up in their case. This is particular to each firm and will be found in the initial engagement letter received.

In some simple cases, it may be possible to negotiate a fixed fee. This means that a solicitor will quote a fee for the conduct of the case and they will not charge more than that amount without agreement. If a solicitor agrees to this, they will set out in writing both the fee and exactly what this covers. This sort of arrangement is only suitable for simple cases, such as road traffic offences or those involving representation at court for only one hearing or a guilty plea.

Payments on account and billing

Privately paying clients will be asked for ‘money on account’. Money on account is a payment towards the final bill, in other words one pays the solicitor money in advance to cover his costs. As he undertakes work and charges against this money, he may require a top up of this fund. The money is lodged by the solicitor in the bank in his client’s name, in a “Client Account”. Criminal solicitors will not ask for a payment on account that is larger than the estimate of the total costs of your case, unless there are restrictions from the prosecution and they agree to hold money on the courts behalf until after the court case has concluded.

Clients can expect to be billed on a regular basis for the work that solicitors carry out on their behalf, unless both parties have agreed some alternative arrangement. Non payment of a bill may result in a solicitor refusing to act further a case. This may incur repeat costs as a new solicitor may have to cover ground already covered by the first solicitor, all of which needs to be paid again. Solicitors also have the legal right to keep any client papers or documents in their possession until their bill has been paid in full. This is called having a ‘lien’ over them.

The right to challenge a bill

Initially queries on bills should be discussed directly with the solicitor involved. Clients are entitled to complain about their bill, if they believe it is excessive compared to the rates agreed. In criminal cases, if a client does not think that the bill that they received is fair, then they can ask the court to assess the work that has been done to see if the court agrees that the amounts the solicitors have charged is reasonable (under Part III of the Solicitors’ Act 1974. This assessment is known as ‘taxation’ but it is actually nothing to do with tax or the Inland Revenue. There may also be a right to object to the bill by making a complaint to the Legal Complaints Service (or the Office for Legal Complaints). Please note that if all or part of the bill remains unpaid and you lose your appeal, the solicitor may be entitled to charge interest.

Costs orders that could be made against a defendant

If a case goes to court and the defendant pleads guilty or is found guilty of an offence at trial, the prosecution will usually make an application for a contribution towards the costs of their case. The amount that they will apply for can vary from £85 for a simple motoring case where there is an immediate guilty plea, to hundreds, or even thousands of pounds in a complicated case that goes to trial at the Crown Court. The court does not have to order payment of the full amount of the application. The court will take account of the defendant’s ability to pay and also any compensation or fine that it might order at the same time.

Crown Court Means Testing

If a case goes to the Crown Court for trial the defendant will automatically qualify for legally aided representation once they have completed an application form. Dependant on the outcome of the means test, they may have to pay towards the cost of their defence. This can be taken from income while the case is ongoing and/or from capital assets, if the defendant is convicted.

Each defendant is asked to provide evidence of their income and assets. If they do not, their payments could be increased which would result in them paying more towards their defence costs. Failing to tell the truth on a legal aid application about income, assets and expenditure could result in a separate prosecution.

Youths below the age of 18 at the time of making an application for legal aid, will not have to pay towards the costs of their case. Anyone in receipt of the following benefits will also be granted legal aid: income support, income-based job seeker’s allowance, guaranteed state pension credit or income-related employment and support allowance.

There is an earnings threshold for the means test, which may vary from year to year. Anyone earning in excess of the threshold may have to pay towards the costs. If this is the case, a Contribution Order will be raised from the court and the defendant will have to make payments as required under the Order. The first payment will be due within 28 days of the case being committed, sent or transferred for trial. A defendant must tell the court about any changes to their financial circumstances during their case because a change may affect the amount they have to pay towards their defence costs. If a defendant thinks a mistake has been made in the calculation, or that he is unable to pay the amount, he can ask for a review.

At the end of the case, if the defendant is found not guilty, any payments he has made will be refunded with interest. If however he paid late or not at all and action was taken against him, the costs of this action will be deducted from the refund.

If a defendant is found guilty, he may have to pay towards his defence costs from any capital assets he may have. This would currently only apply if:

  • He has £30,000 or more of assets, for example: savings, equity in property, shares or Premium Bonds; and
  • Any payments already made have not covered the total defence costs.

Defendants are told at the end of their case if a payment from capital is required.

Costs orders that could be made in favour of a defendant

If the charges or summonses against a defendant are not proved, then they can apply to the court for a ‘Defendant’s Costs Order’ or ‘costs from central funds’. These are available if the prosecution drop the charges before court; if they ‘offer no evidence’ when at court; the court finds the defendant not guilty at trial; or if the case is dismissed for any other reason. Unfortunately, one can only claim for legal, travel and subsistence expenses. Loss of earnings is not covered. The court will pay the reasonable costs of getting to and from court and subsistence whilst at court. For example, if there is a day long trial, they might give an allowance for lunch. Defendants should keep any or all receipts for trains, buses, taxis or refreshments to support any such claim.

If a defendant has paid privately for his defence and a “costs from central funds” order is made, this will allow a percentage of costs to be returned. The exact rate that you will recover depends on a number of variables including (a) amount of preparation, (b) amount of advocacy, (c) the court in which your case is tried and (d) whether counsel was instructed. Again the defendant will need to provide receipts for trains, buses, taxis or refreshments to support an expenses claim for getting to and from court and subsistence whilst at court.

If the defendant faced more than one charge and was not acquitted on all of them, costs will be further apportioned.

It can take between three and six months for the monies to be refunded.

Our thanks to Hamnett Osborne Tisshaw for their assistance with this article

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