Will CCFS apply to the case?
CCFS is stated to only apply to S.31 care and supervision applications. There is however a discretion to apply the scheme to certain other family cases that proceed in a similar manner and include a fact-finding and disposal hearing. For these cases, the scheme is certainly worthy of consideration, and it is important to note that the application should be made to the LAA at the same time as notifying the LAA that the case will be high cost.
The scheme will be used when the actual or predicted future costs will exceed £25,000 excluding VAT and the matter will therefore be considered to be a high cost case. The calculation will be at the relevant prescribed rates including any panel and discretionary enhancements and should include Counsels’ fees and all other disbursements. Should the need arise, Counsels’ clerks can be approached to provide an estimate of Counsels’ fees at both FAS and events rates. In certain cases, it may be obvious at a very early stage in the proceedings that the costs will exceed £25,000. In other cases, unplanned developments may result in an increase in the estimated costs to beyond £25,000 or during the case the actual costs may reach this figure. Whichever may apply, it is crucial that the application for the case to be considered under the scheme must be made at this stage. An application to register the case as high cost once the case has concluded will almost certainly be refused, thereby restricting the costs which may be claimed to £25,000. It should also be noted that an application to deregister the case as high cost can later be made, though this will be at the LAA’s discretion.
A further point to note is that if the provider is acting for more than one legally aided party, then the £25,000 figure is applied to the case as a whole, rather than the costs incurred for each client.
The registration process
Once it has been established that the costs will exceed £25,000, the provider must advise the LAA. The LAA’s recommendation is that unless a practitioner is sure the costs will not exceed £25,000 then the practitioner should start discussions with the High Cost Family Team about whether the case will need to become a high cost case. In other words, there is no need to wait until the costs near £25,000 and in fact there will be some cases where it will be clear the costs will exceed this figure from the outset. It is important to note that the onus is therefore on the provider (and not the LAA) to identify once the case will become high cost and to advise the LAA.
At this stage it is also good practice to advise Counsel and their clerk that an application to register the case as high cost has been made, particularly since they will not automatically be notified by the LAA once registration has taken place. They may then amend their records and be ready to assist the practitioner as the case progresses.
The actual registration process is by way of a VHCC case enquiry within CCMS and the nature of the enquiry should be ‘CCFS – Register’. Of course, the LAA will need to be satisfied that the costs will exceed £25,000 so brief reasons in support will need to be given. Should the LAA not be satisfied, then a request for further information will be sent to the practitioner. Once the LAA have sufficient information to register the case then a Case Plan task will be created.
Once the Case Plan task has been created, this must be used to upload a signed contract (the contract being available for download from the LAA’s website). Counsel Acceptance Forms must technically also be uploaded for Counsel retained once the case has been registered as high cost (in practice the LAA may allow the practitioner some latitude in this respect though the forms must be provided before the end of the case). However, for Counsel who may have dealt with a single hearing, have already been paid under FAS and play no further part in the case, then a Counsel Acceptance Form is not required.
Occasionally, Counsel may be reluctant to sign a Counsel Acceptance Form until the actual work has been completed by them. However, there is no reason why Counsel should not sign the form in advance and this should be encouraged as it will speed up the case.
Finally, at the same time as uploading the contract and Counsel Acceptance Forms, a separate application should also be made to increase the cost limitation to £32,500 which is the default amount for single Counsel cases.
It may be that the provider considers the £32,500 cost limitation is sufficient to fund the case until conclusion. If this is the case, the provider will be required to submit a fully completed final CCFS form no later than 3 months after the case concludes.
However, there may be cases where the total costs will exceed £32,500 while the case is ongoing. These can typically be where Counsels’ fees and other disbursements are particularly heavy. It is also easy for costs to exceed £32,500 for long running cases as a result of the number of hearings involved. In such cases it is advisable to consider how the case will be funded as the case progresses. For example, significant payments may have already been made under the certificate to settle Counsels’ fees and other disbursements and when added to payments on account of profit costs, the amount remaining under the cost limitation may not be sufficient to fund the case going forward.
For any case where the £32,500 has been or will be exceeded, an increase to the cost limitation will be required. In such cases, an interim CCFS form should be prepared identifying the costs incurred and anticipated costs going forward.
It is also worth considering the involvement of Counsel at this stage for two reasons. Firstly, from a practical point of view, the input of Counsel’s clerk can be invaluable since they can assist with case planning (particularly with providing estimates) and generally making it far easier to prepare the interim CCFS form. Secondly, Counsel and their clerks have access to considerably less information than practitioners in CCMS. For example, although they can see the amount of fees allocated to Counsel, they are unable to determine once a case has been registered as high cost, or the amount of the overall cost limitation or communications between the practitioner and the LAA. For this reason, a good dialogue with Counsel and their clerks is essential so that they are always up to date with the funding position (especially as it relates to Counsel’s fees) and this should be maintained throughout the life of the case.
Once the interim CCFS form has been prepared this should be sent to Counsel and their clerk for approval. When the practitioner is sure that it is correct, it may then be submitted to the LAA via the Case Plan task. If approved, an application to increase the cost limitation may be made in accordance with the figure agreed with the LAA. In such cases it is advisable to proceed as above at the earliest possible stage as the process can be time consuming.
Exceptional cases
At the point of making an application to register the case as high cost, one further point must be considered – should the case be dealt with under CCFS (the default position) or is the case exceptional? The LAA’s definition of an exceptional case is ‘if the estimated total costs calculated by hourly rates, including any enhancement, exceed the total costs calculated using the CCFS Model by 30%’[1]. It is worth setting out the LAA’s (non-exhaustive) list of some of the circumstances which may lead to a case being exceptional:
- Where there is an issue of law that is new or unclear due to conflicting decisions and/or statutory requirements, or issues of public policy, requiring exceptional preparation and legal research. Of course, approval of this work would be subject to the merits test.
- The factual matrix which raises highly unusual issues or a multiplicity of issues going significantly beyond that commonly experienced in similar cases.
- A clear and significant dispute between experts on the same key novel issue(s), the resolution of which is likely to result in very different outcomes (adoption or return home) and an understanding of the relevant research materials is necessary. An example would be the Al Alas Wray type dispute with novel legal determination of Vitamin D deficiency as the cause of rickets.
- A significant dispute between parties to the proceedings which goes beyond that ordinarily encountered in similar cases the resolution of which is likely to result in very different outcomes for the children, and which involves extensive numbers of witnesses and other materials (such as DVDs, audio tapes) to consider. This would take the form of extending the number of court bundle payments that may be claimed beyond those allowed under FAS.
- Where the case requires a level of client contact, preparation and on-going work during the proceedings which goes significantly beyond that which would ordinarily be expected in cases of a similar type – e.g. a client with severe mental illness, communication or learning difficulties who require extra conferences/extraordinary level of client care. This would take the form of extending the number of client attendances, or conferences that may be claimed beyond those allowed under FAS.
- There has been a late change in representation, which will require exceptional levels of preparation by the litigator.
- Where the number of hearings and advocates meetings are unusually low for the amount of work that has been undertaken in the case as a result of the application of the Public Law Outline structure.[2]
If the practitioner considers the case to be exceptional, then it is necessary to…
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[1] (High Cost Family -Care Case Fee Scheme Information Pack -1 Advocate (External or In-house), n.d.)
[2] (High Cost Family -Care Case Fee Scheme Information Pack -1 Advocate (External or In-house), n.d.)