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Some Legal Aid Authority nuggets you might not have noticed...

We’ve been busy updating our Expert Witness Fees book over the past few months (3rd edition is due out in January 2016). While researching and rewriting, we have come across a few points of guidance that may not have registered with the busy expert.

1. Did you know that the Legal Aid Agency (LAA) will pay only £40 per hour for time you spend travelling? In the Civil Legal Aid (Remuneration) Regulations 2013, Schedule 5 under Experts’ fees and rates it states:

6. The maximum amount that the Lord Chancellor may pay as a disbursement in respect of an expert’s travel time is £40 per hour.’

So, if you claim any more than that you will be creating a shortfall the lawyer instructing you will have to meet.

2. Prior authority should now be sought only in ‘exceptional circumstances’. Such circumstances include:

  • if your rate exceeds the maximum codified rate for your profession as listed in the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013, Schedule 2 or the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, Schedule 1
  • if the number of hours you are proposing is ‘excessive’ - by which they mean, is above the upper bound of ‘normal’
  • if you are a second expert instructed in a case
  • if the complexity of the material is such that only an expert with a high level of seniority will do
  • if the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence
  • if your expertise is not listed in the Remuneration Regulations.

Indeed, if a solicitor approaches the LAA for prior authority under normal unexceptional circumstances, the LAA’s Guidance on authorities and legal aid for cases in courts outside England and Wales (April 2014) warns: ‘... an inappropriate application for prior authority itself represents work that it was unreasonable to incur.’ We wonder what sanction lies behind that implied threat?

3. The LAA says: ‘Don’t instruct experts through an agency.’ In its Guidance on authorities and legal aid for cases in courts outside England and Wales (LAA, April 2014), the LAA states in Section 1.4 Employment of Experts:

4. Providers are expected to identify and instruct appropriate experts directly (rather than through any agency or third party, whose involvement is considered to be an unjustifiable expense).

This is a clear nod to the fact that the cost to the LAA of experts instructed via middlemen agencies is higher than when experts are instructed directly by solicitors. Indeed the LAA recognises agency involvement as an ’unjustifiable’ expense.

4. Tea and Telegraph - The LAA’s Crown Court Fee Guidance (June 2014), in explaining Regulation 17 of the Criminal Legal Aid (Remuneration) Regulations 2013, states (under Regulation 21 we interpret ‘litigator’ to include ‘expert witness’):

16. A Personal Incidental claim can be made only when the litigator has stayed over in a hotel, and must be supported by receipts. The items claimable are:

• Newspapers
• Tea or coffee at court.

So there you have it... if you stay overnight for a criminal court hearing you can claim for a newspaper and a cuppa at court, so long as you keep the receipts.

5. We’ll pay you for preparing a quote, but only if we then instruct you! If an expert needs to undertake preliminary reading of case papers to produce a quote, the LAA will only pay for the time spent reading (at an agreed formula per page) if the quote is accepted! And this is on the basis that the reading is not duplicated post instruction and will be used by the expert to draft their report. (See Criminal Bills Assessment Manual, LAA, April 2013.) The cheek of it!

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Issue 92
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Well, I never!


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