Litigator Graduated Fees - A step by step guide
Litigator graduated fees (LGF) apply to all cases where the representation order is dated on or after 14 January 2008, and which do not fall within the very high cost case (VHCC) funding regime. So, if a case was in court on 10 January and adjourned for committal on 3 March and committed for trial, it would be billed under the old scheme (as the representation order dated 10 January covers crown court proceedings and is dated prior to 14 January). All fees in the 2007 funding order are expressed exclusive of VAT. Essentially, each case is “worth” a graduated fee. This depends on:
(i) the seriousness of case;
(ii) pages of evidence; and (iii) what happens—plea, cracked trial, or trial (there are other provisions dealing with transfers and various other outcomes such as hearings).
The magistrates’ court element of a case sent to the crown court (Crime and Disorder Act 1998, s 51) is included in the LGF and does not attract any extra payment.
If a case proceeds to confiscation under the Proceeds of Crime Act 2002 (Criminal Justice Act 1988/Drug Trafficking Act 1994 for older cases) this element of the case is paid ex post facto at hourly rates. An uplift can be applied for in accordance with the usual criteria, ie exceptional competence, skill, expertise, despatch, exceptional complexity etc, but only in respect of offences in class A, B, C, D, G, I, J or K.
STANDARD FEES
Some fees are paid at a standard rate.
- Fees for contempt proceedings (advocates) are fixed: QC £300 per day; leading junior £225; and led junior or junior acting alone £150. These reduce to £175, £125 and £100 if a litigator is also instructed. The fee for a litigator is £127.66 (when the person in contempt is not the defendant). When the defendant himself is accused of contempt there is no extra payment.
- Appeal against conviction from magistrates’ court pays £340.43.
- An appeal against sentence pays £127.66.
- A committal for sentence pays £212.77. ! Breach of crown court order £85.11—but note: if you acted in the original proceedings no fee is payable it is deemed as part of the LGF.
CALCULATING THE FEE
Identify the offence: broadly speaking (see supplement of Archbold for more details): Class Description (Criminal Defence Service (Funding) Order 2007 (SI 2007/1174))
A Homicide and related grave offences
B Offences involving serious violence or damage, and serious drug offences
C Lesser offences involving violence or damage, and less serious drug offences
D Sexual offences and offences against children
E Burglary, etc
F Other offences of dishonesty
G Other offences of dishonesty (>£30,000)
H Miscellaneous other offences
I Offences aginst public justice
J Serious sexual offences
K Other offences of dishonesty (>£100,000)
It is critical that you get this right, a minor slip could cost you thousands of pounds. The Legal Services Commission (LSC) will take the court’s calculation—it is imperative, therefore, that the page count is agreed with the court in all cases prior to billing. Note in particular the rules below.
Indictable offences
Every indictable offence falls within the class under which it is listed in the table of offences and indictable offences not specifically listed will be deemed to fall within class H. Conspiracy to commit an indictable offence contrary to the Criminal Law Act 1977, s 1 incitement to commit an indictable offence and attempts to commit an indictable offence contrary to the Criminal Attempts Act 1981, s 1 fall within the same class as the substantive offence
to which they relate.
- Where the table of offences specifies that the class within which an offence falls depends on whether or not the value involved exceeds a stated limit, the value must be presumed not to exceed that limit, unless the litigator making the claim proves otherwise to the satisfaction of the appropriate officer.
- Where more than one count of the indictment is for an offence in relation to which the class depends on the value involved, that value must be taken to be the total value involved in all those offences. Where two or more counts relate to the same property, the value of that property must be taken into account once only.
- Where an entry in the table of offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry, that entry will include every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences.
- Where in a case on indictment there is a hearing to determine the question of whether an assisted person is unfit to plead or unfit to stand trial, the litigator must elect whether that hearing falls within the same class as the indictable offence to which it relates or within class D.
- Where in a case on indictment a restriction order is made under the Mental Health Act 1983, s 41 the offence falls within class A.
- Where a litigator in proceedings in the crown court is dissatisfied with the classification within class H of an indictable offence not listed in the table of offences, he may apply to the appropriate officer when lodging his claim for fees, to reclassify the offence. If there is more than one offence on the indictment you choose the one that gives the greatest fee.
Page counts
Once the offence has been identified you need also to identify the prosecution evidence page count (PPE). Once again this is critical as each category of case has a basic number of pages built into the basic fee. So, for example, on a murder (class A) the cut-off for PPE is 150 pages for a cracked trial or guilty plea and a different number if the case runs to trial dependant on how long it runs for. So, for example, a murder case that runs for 18 days has a PPE cut off of 1,696 pages. Evidence is statements and exhibits, including things like interview summaries. The fee then depends on whether or not the case has more or less papers
than the cut off. If there is a trial, record the length of that trial. A day counts as a day no matter for how long the court sits (10 minutes or 10 hours).
Additional payments
There is no additional payment for unused material or defence generated material. Nor is there any additional payment for listening to tapes or viewing videos. In addition, there is no PPE count for evidence served on CD-Rom, although you can claim an exceptional payment which is discretionary (it would not be paid for small amounts of evidence).
There are no payments for travel time etc, but disbursements will be paid, eg travel and parking and any usual disbursements such as experts fees. There are also no additional payments for preliminary hearings, plea and case management hearings (PCMH), sentences etc. Uplifts are payable: 2–4 defendants 20% (that is in total not per additional defendant); 5 plus 30% (in total).
Better to share co-defendants!
There are no additional payments for “court attenders”. Prosecuting counsel seem to manage fine without someone sitting behind taking a note, and you may therefore be thinking of dispensing with court attenders in many instances. However, you should consider and follow the guidance given under r 11 of the Solicitors Code of Conduct which heavily regulates what you can and cannot do.
- Where you decide that an advocate should not be attended you should inform the advocate and deliver a full and detailed brief sufficiently early for the advocate to consider the papers and to decide whether or not it would be appropriate for the advocate to attend alone.
- You should also inform the client that the advocate will be unattended and how instructions may be given.
- There is no longer any need to obtain a litigator’s certificate to attend.
Trial and pleas
A trial begins when the jury is sworn in—record the date (note: if there is a preparatory hearing under the Criminal Procedure and Investigations Act 1996, s 29, that is the start of trial). A cracked trial is a case that ends after a not guilty plea is entered but before the first day of trial, and a guilty plea is when a plea is entered at or before PCMH, save when it is a trial. A hearing triggers a trial fee, count day plea is entered and any hearing days to determine “trial” length. If there is a joinder, it will generate one bill only. However, if there is a discontinuance or dismissal the fee will depend on the stage the case has reached and in particular whether the prosecution has served its case or not.
Warrants
If a client absconds, the bill can be paid after three months. If the client is arrested within 15 months of absconding then any claim made will be offset against the final bill.
Unfit to plead
In a case, where a “fitness hearing” has taken place and the trial continues, this will have been treated as a day at trial for the purposes of payment and therefore the length of trial will be taken to include the combined length of the main hearing and the fitness hearing.
SUBMITTING AN LGF BILL
This can be done online or on paper. Disbursements below £20 do not require the submission of receipts but should be retained by firm. Hardship payments can be claimed for cases >£5,000 running longer than six months. Bills should be submitted within three months of matter concluding, there are 26 different claim types, and trials and retrials are billed separately. There is no obligation to record time, however you are advised to with an eye on best value tendering, as you need to know the true cost of completing cases.
