Clinical Negligence Legal Aid Claims & Costs: Your Questions Answered!

Head of Court of Protection

Adrian Hawley, Head of Court of Protection Costs at PIC answers some commonly asked questions regarding the forthcoming changes in March and on costs for these specialist Legal Aid cases.

I have recently been asked by our clients to answer some common queries on Legal Aid funded cases in Clinical Negligence. As Head of the PIC Court of Protection Costs team those questions revolve around preparations for clients entering into the CoP. There are a couple of hot topics to keep an eye out on: one is the forthcoming change in March 2017 to costs orders that can be made by the Court of Protection and the second is the recent update to the Office of the Public Guardian Deputy Standards on 17 January 2017.

Legal Aid

1. Costs limit

The most common errors we come across when costing an unsuccessful case are where a client has gone over the certificate limit. In the main there are three types of legal aid certificates:

  • The basic certificate based on a costs limit.
  • A High / Very High Costs case.
  • Clinical Negligence Funding Checklist where the costs limit is set by the number of experts proposed.

2. Hourly rate

The hourly rate can be checked by using the excel spreadsheet provided by the Legal Aid Agency on it’s website.

3. Checklist

Don’t forget: when sending your completed Claim 1 off to the Legal Aid Agency for assessment to attach the Checklist for the CIV Claim 1 – failure to do so can result in your KPI being affected. You can find the checklist here.

4. Experts’ fees & disbursements

From 6th June 2011 all civil certificated claims required the submission of a disbursement voucher for any amount that has a value of £20 or over (inclusive of VAT).

Invoices for experts should be produced by the expert and should contain the following details:

  • The expert’s name
  • The specialism of the expert
  • The address of the expert and where they are claiming travel to / from
  • The client name
  • A breakdown of the work undertaken. The breakdown should contain the hourly rate or contain sufficient detail to allow the hourly rate to be easily determined. This requirement applies to all claims submitted (including those issued before the codified rates were introduced).

Where the litigators have been unable to provide the level of detail in the vouchers, due to the age of the case, we will accept vouchers without that level of detail but providers will need to justify this in a covering letter.

5. Expert Administration

Remember this is NOT recoverable from the Legal Aid Agency and any letter of instruction to your expert should mention this fact to prevent issues later.

6. Prior Authority

The best use of time of a fee earner is to seek prior authority from the Legal Aid Agency to incur the costs of an expert by use of the CIVAPP8 application:

Rates for experts

1. Expert Rates prior to 03/10/11

There are no codified rates for experts for certificates applied for prior to 03/10/11. The codified rates can be used as a guide to what rate would be considered reasonable.

2. Expert Rates for certificates after 03/10/11

Codified rates were introduced for experts for certificates issued on/after 03/10/11.

You can find the guidance to the expert hourly rates in the guidance on the website here.

There is a maximum hourly rate for experts, given in the guidance. However, any hourly rates charged by experts over this guidance is where you can seek prior authority.

Remember when dealing with a matter that is funded by Legal Aid always to confirm with your expert if they are charging a legal aid hourly rate or a private client hourly rate. Some experts will quite happily quote for both private and public funded rates knowing they will be charging a lower rate if the case is unsuccessful, it’s worth asking.

One item to note is where you may have a specialist expert whose rate is not quoted in the guidance and on this point, remember to seek prior authority.

Finally, the maximum hourly rate paid to an expert for travel time in a legal aid funded case is £40 per hour.

If you’re running Clinical Negligence Legal Aid Claims, please do get in touch with PIC. We’re happy to answer any related costs questions you have and provide in-house training or review sessions.

Adrian Hawley is the Head of Court of Protection Costs at PIC. Click here to contact him on this or any other CoP matter.