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SECTION 24 |
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24.1 |
Introduction |
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| (a) |
Because of changes made by the Administration of Justice Act 1999 the old
legal aid scheme, the Legal Aid Board and the Legal Aid Fund have all been replaced by a
new funding scheme, the Legal Services Commission ("LSC") and the Community Legal
Service Fund. Cases started under the old scheme continue largely as before but, on
conclusion, will be paid for out of the Community Legal Service Fund.
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| (b) |
Under the old scheme legal aid paid for legal services supplied to "assisted
persons". Under the new scheme legal aid provides legal services for "clients". In this
Guide the term "LSC funded client" is used to cover both assisted persons and "clients".
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| (c) |
The modern form of order for what used to be called "legal aid taxation" is
now "detailed assessment of the costs of the [party] which are payable out of the Community
Legal Service Fund".
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24.2 |
Costs Payable by Another Person as Well as Out of the Fund |
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| (a) |
Where the costs are payable by another person as well as out of the
Community Legal Service Fund, the rules governing commencement of detailed assessment
proceedings, points of dispute and replies are the same as those which apply to between the
parties cases generally (see Sections 3 and 17 above). The Schedule of Costs Precedents
includes model forms of bills for use in such cases (Precedents C and D).
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| (b) |
The request for detailed assessment hearing must (in addition to the items set
out in Section 8 above) be accompanied by:
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| (ii) |
a certificate in Precedent F(3) and where appropriate a certificate in Precedent F(4) of
the Schedule of Costs Precedents (as to which, see Appendix para A-2);
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| (iii) |
if the LSC funded client has a financial interest in the detailed assessment hearing and
wishes to attend, the postal address of that person to which the court will send notice
of any hearing;
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| (iv) |
if the rates payable out of the Community Legal Service Fund are prescribed rates (ie
if the Civil Legal Aid (Remuneration) Regulations 1994 apply), a schedule (the
"Legal Aid /LSC Schedule") setting out all the items in the bill which are claimed
against other parties calculated at the legal aid prescribed rates. Precedent E of the
Schedule of Costs Precedents should be followed as closely as possible;
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| (v) |
a copy of any default costs certificate in respect of the costs claimed in the bill.
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| (c) |
The LSC funded client should not be served with a copy of the notice of
commencement and should only be served with a copy of the bill if he or she has a financial
interest in the detailed assessment.
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24.3 |
Procedure Where Costs are Payable by Another Person as Well as out of the Fund |
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| (a) |
Unless the legal aid/LSC only sections of the bill are comparatively small or
otherwise easy to deal with, the detailed assessment will be conducted in two stages.
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| (i) |
In the first stage the court will consider only the between the parties sections of the
bill, the points of dispute thereon and any replies made.
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| (ii) |
In the second stage the court will consider the legal aid/LSC only sections of the bill
and the Legal Aid/LSC Schedule.
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| (b) |
The Legal Aid/LSC Schedule is of no concern to the party against whom costs
have been awarded between the parties and indeed that person should not normally attend the
second stage of the detailed assessment.
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| (c) |
The LSC funded client's solicitor will have prepared the Legal Aid/LSC
Schedule in advance of the detailed assessment. It may therefore be necessary to begin the
second stage of the detailed assessment by altering the Schedule so as to update it, taking
account of the decisions made during the first stage of the detailed assessment.
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| (d) |
In respect of any item appearing in the Legal Aid/LSC only sections of the
bill, the court will consider what sum, if any, it is reasonable to allow in respect of that item.
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| (e) |
In respect of any item deleted or reduced in the Legal Aid/LSC Schedule so as
to take into account decisions made during the first stage of the detailed assessment, the court
may be requested to consider whether any part of that item can be restored via an appropriate
alteration to the Legal Aid/LSC only sections of the bill.
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24.4 |
Costs of detailed assessment proceedings |
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| (a) |
Costs incurred on behalf of a LSC funded client in respect of a detailed
assessment between the parties are treated in the same way as other costs incurred on his
behalf, and whether or not they are payable by the other party, may also be claimed against
the Community Legal Service Fund. In general the party whose bill is the subject of detailed
assessment is entitled to the costs of the detailed assessment proceedings. However the court
may make some other order in relation to all or part of the costs of the detailed assessment
proceedings. (See Section 11 above.)
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| (b) |
The LSC funded client will not be required to make any contribution to the
Community Legal Service Fund on account of the costs of the detailed assessment
proceedings and the statutory charge does not apply in relation to any resulting increase in the
net liability of the Fund arising from the costs of the detailed assessment proceedings. The
cost of drawing up a bill of costs is however not included as part of the costs of the detailed
assessment proceedings (Civil Legal Aid (General) Regulations 1989, Regulation 119 as
amended).
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24.5 |
Costs Payable Only Out of the Community Legal Service Fund |
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| (a) |
Where costs are payable only out of the Community Legal Service Fund, the
solicitor representing the LSC funded client may request a detailed assessment of costs within
3 months after the date upon which the right to detailed assessment arose. The request must
be in Form N258A and must be accompanied by a copy of the bill of costs and the other
documents listed in paragraph 43.3 of the Costs Practice Directionpdp-47.
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| (b) |
Where the solicitor has certified that the LSC funded client has a financial
interest and wishes to attend, the court will, on receipt of the request for detailed assessment,
fix a date for the detailed assessment hearing.
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| (c) |
Where the solicitor has certified that the LSC funded client has no financial
interest or does not wish to attend the detailed assessment, the court will provisionally assess
the costs without the attendance of the solicitor, unless it considers that a hearing is
necessary. After the court has provisionally assessed the bill, it will return it to the solicitor.
If the solicitor informs the court within 14 days after he receives the provisionally assessed
bill that he wants the court to hold a detailed assessment hearing, the court will fix a date for
such hearing.
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24.6 |
Duty to Inform Counsel |
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It is the duty of the LSC funded client's solicitor to notify counsel in writing within 7 days
after the detailed or provisional assessment where the fees claimed on his behalf have been
reduced or disallowed on assessment and the solicitor must endorse the bill with the date on
which such notice was given or that no such notice is necessary. If the bill is endorsed with
the date upon which notice was given to counsel the court may not issue the certificate until
14 days have elapsed from the date so endorsed (see Civil Legal Aid (General) Regulations
1989, Regulation 112 and Precedent F(4) of the Schedule of Costs Precedents in Appendix 1,
below, para A-2).
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24.7 |
Completing the Bill and the Legal Aid Assessment Certificate |
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It is the responsibility of the legal representative to complete the bill by entering in the bill
the correct figures allowed in respect of each item, recalculating the summary of the bill
appropriately and completing the Legal Aid Assessment certificate in Form EX 80A.
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24.8 |
Agreement of Between the Parties Costs |
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| (a) |
Where the Civil Legal Aid (Remuneration) Regulations 1994 do not apply to
the detailed assessment (which is generally the case where the legal aid certificate was issued
before 25 February 1994) the Civil Legal Aid (General) Regulations 1989, Regulation 106
remains applicable and an agreement of between the parties costs is not possible unless the
agreement is accepted in full and final settlement of the costs ie with no further claim against
the Fund. Therefore where in such cases the receiving party wishes to make a claim against
the Fund, the parties will be informed that there will have to be a detailed assessment of the
whole bill. However, because of the measure of agreement which has been reached, the
detailed assessment of the between the parties sections of the bill may not take very long to
complete.
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| (b) |
In cases where the Civil Legal Aid (Remuneration) Regulations do apply the
Civil Legal Aid (General) Regulations 1989, Regulation 106A permits the LSC funded
client's solicitor to apply for an assessment limited to legal aid/LSC only costs provided the
between the parties costs have been both agreed and paid.
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24.9 |
Costs Appeals |
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The solicitor for a LSC funded client may appeal against a decision of a Costs Judge or
District Judge in detailed assessment proceedings in accordance with Rules of Court (ie CPR
Part 52) and if counsel acting for the LSC funded client notifies the solicitor that he is
dissatisfied with the decision the solicitor must appeal on counsel's behalf. The costs of any
such appeal will only be payable out of the Community Legal Services Fund to the extent that
the court hearing the appeal so orders. For the detailed Regulations relating to appeals
involving LSC funded clients see Civil Legal Aid (General) Regulations 1989, Regulation
113 as amended and CPR 47.20(2).
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