Unit 4: Funding LS

Question 1

What is the retainer?

Answer 1

• Definition - the contractual relationship which exists between solicitor and client
  o Key aspect (should be agreed at the outset) - fees and charges that the solicitor will charge for acting for the client, and the manner in which those fees and charges will be met
• Limitations - SRA can restrict the fees the solicitor may charge, and how the solicitor can be remunerated (depends on the type of work the solicitor has agreed to carry out)

Question 2

What is the SRA transparecy rule?

Answer 2

• in relation to certain types of legal services, particular costs information must be provided, including the circumstances in which clients may have to make any payments themselves for the services provided by the solicitor (including from any damages received)

Question 3

Which principles do excessive charging breach?

Answer 3

o SRA Principle 7 (best interests) and Principle 5 (integrity) - excessive charges for work done could breach both
o Para 1.7 SRA Code - excessive charges could breach, as this provides that a solicitor must not abuse their position by taking unfair advantage of the client

Question 4

How can a client challenge a bill?*

Answer 4

• Client has the right to challenge a solicitor’s bill
• May involve asking the court to assess costs - court will reduce the bill if the amount charged is unreasonable
  o If the costs officer (when assessing a solicitor’s bill in a non-contentious matter) reduces the amount of the costs by more than 50%, they must inform the SRA

Question 5

Alternative funding offer?

Answer 5

• There is no obligation to offer alternative funding options or to agree to act for a client under any of them
• Good practice - solicitor should make the client aware of the funding options and, if necessary, direct the client to take separate advice on their availability

Question 6

What is private funding?

Answer 6

• Traditional funding method - client funds the solicitor’s fees privately
  o Client is personally responsible for the solicitor’s fees and disbursements, irrespective of the outcome of the case

Question 7

How are fees calculated with private funding?

Answer 7

solicitor’s fees are calculated according to the time spent on the case at a given hourly charging rate (disbursements and expenses are charged separately)
o client will be informed at outset which fee earners will be working on their file + the fee earners’ respective charge-out rates
o ultimate cost to the client is open-ended but solicitor must still give the client the best possible information on the likely overall cost of the matter
 depends on:
 how long it takes to conclude the case; and
 how much work the solicitor has to undertake on the client’s behalf

Question 8

When are fixed fees used?

Answer 8

• Type of private funding - client is personally responsible for paying the solicitor’s charges, but the amount to be charged is established and known at the outset
  o Commonly used in - conveyancing transactions

Question 9

Private funding limitations?

Answer 9

• given the restrictions on the availability of legal aid in civil cases, it is not unusual nowadays for a client to conduct the case themselves, only instructing a solicitor to carry out a specific step in the proceedings, such as drafting a document or attending a hearing (on a fixed fee basis)

Question 10

Can a fixed fee be altered at a later date?

Answer 10

solicitor should obtain all the relevant information in order to set a fixed fee at a reasonable but remunerative level
o why? - fixed fee cannot be altered at a later date (unless the client agrees) if the work turns out to be more expensive than the solicitor first expected

A firm of solicitors agreed a fixed fee to briefly review and comment on the terms of a document. The fee was agreed before the solicitor involved had seen the actual document. The client later sued the firm for negligence.
Cranston J commented: ‘When solicitors undertake work at a specific fee, they are generally speaking obliged to complete it exercising the ordinary standard of care, even if it has become unremunerative.’

Question 11

What is contentious business

Answer 11

work done in relation to proceedings (but only once proceedings have been issued)

Question 12

What is non-contentious business?

Answer 12

• ‘any business done as a solicitor which is not contentious business’ (s87 SA)
  o e.g., conveyancing or commercial drafting work

Question 13

What is a non-contentious business agreement?

Answer 13

• Solicitor and client can enter into a non-contentious business agreement in respect of the solicitor’s remuneration for any non-contentious work
  o Remuneration options - gross sum, commission, percentage, salary, etc.

Question 14

What are the formalities for a non-contentious business agreement?

Answer 14

o be in writing;
o be signed by the client;
o contain all the terms of the agreement (including whether disbursements and VAT are included in the agreed remuneration)

Question 15

Where the formalities for a non-contentious agreement are complied with, can the client challenge the costs?

Answer 15

• Where s57 is complied with, the client will be unable to apply to have the bill assessed by the court
  o NB the court can set the agreement aside or reduce remuneration if the amount charged is unfair or unreasonable

Question 16

What is a contentious business agreement?

Answer 16

• Remuneration options - gross sum, hourly rate, salary, etc. but NOT a contingency fee

Question 17

Formalities of a contentious agreement?

Answer 17

• To be enforceable, the agreement must: (ss59-63 SA)
  o state it is a contentious business agreement;
  o be in writing;
  o be signed by the client; and
  o contain all the terms

Question 18

Can a client apply for an assessment of costs for a contentious agreement?

Answer 18

• Where enforceable, the client will be unable to apply to court for an assessment of costs
  o Exception - where remuneration is by reference to an hourly rate
• Court can side aside the agreement or reduce remuneration if it is unfair or unreasonable

Question 19

Criticism of legislation?

Answer 19

• Distinction between contentious and non-contentious hangs on whether proceedings have been issued.
• Illogical and outdated distinction, e.g.:
  o s74(3) - limits the fees that can be charged in certain circumstances, but is only applicable to ‘contentious’ business
  o resolving claims via online pre-action portals constitutes non-contentious business for some reason

Question 20

Solicitor and client costs vs costs between the parties?

Answer 20

• Distinction:
  o Solicitor and client costs - fees that the client has agreed to pay to their own solicitor
  o costs that may be awarded between the parties at the end of the case
  o solicitor must explain difference at outset

Question 21

If the client loses

Answer 21

o Client will usually have to pay their own solicitor’s costs + their opponent’s costs
o General rule - unsuccessful party will be ordered to pay the costs of the successful party, with the amount being agreed or assessed by the court.

Question 22

If the client wins

Answer 22

o Client will still be responsible for their own solicitor’s costs.
o Usually the opponent will be ordered to pay costs - will be an agreed amount or sum assessed by the court
 If less than the costs paid, client will have to bear the loss
 Client may recover no costs at all (e.g., if opponent is bankrupt), in which case they will have to pay their solicitor’s costs in full

Question 23

What is a conditional fee arrangement?

Answer 23

an arrangement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances

Question 24

CFA - what happens if the case is lost?

Answer 24

solicitor receives no payment or less than normal payment

Question 25

CFA - if the case is won?

Answer 25

 If case is won - solicitor receives normal or higher than normal payment
 higher fee must be expressed as a percentage increase of the fee that would be payable if there was no CFA
 usually based on the solicitor’s usual hourly charging rates

Question 26

CFA access to justice requirement?

Answer 26

o Justification - provides access to justice for those for whom it would otherwise be denied (but there is no requirement that the client must be unable to fund the case by other means)

Question 27

What if the CFA formalities are not complied with?

Answer 27

CFA will be judged invalid and the solicitor will not be able to recover any fees under it

Question 28

When may a CFA be entered into?

Answer 28

may be entered into in relation to any civil litigation matter, except family proceedings

Question 29

What are the formalities for a CFA?

Answer 29

 may be entered into in relation to any civil litigation matter, except family proceedings;
 must be in writing; and
 must state the percentage by which the amount of the fee that would be payable if it were not a CFA is to be increased

Question 30

CFA restrictions for the success fee and personal injury?

Answer 30

 success fee cannot exceed 100% of the solicitor’s normal charges
 personal injury - additional cap of 25% of general damages recovered

Question 31

CFA - if the client wins?

Answer 31

 if the client wins, and the opponent is ordered to pay the client’s costs, these cannot include the success fee

Question 32

CFA - if the client loses?

Answer 32

 possible to include disbursements, but unlikely for firms to do so - therefore, if the client loses, they will still be liable for disbursements (e.g. counsel’s fees or expert witness costs)

Question 33

Disadvantage of the CFA to a client who loses?

Answer 33

if the client loses, they will be ordered to pay the opponent’s costs including disbursements, and may not be in a position to do so. They will not know until the end of the litigation whether they are liable to the opponent for costs, and if so, for how much.

Question 34

Possible protection for a client who loses?

Answer 34

client may benefit from purchasing after-the-event insurance, which covers for the other side’s costs and the client’s own disbursements in the event of losing the case

Question 35

Client losing vs winning - what to pay?

Answer 35

Wins: other opponent pays for usual feeds + disbursements but not shortfall/success fee

Loses: client must pay opponent’s costs + disbursements and own solicitor’s disbursements but not solicitor’s bill or success fee

Question 36

Can counsel enter a CFA?

Answer 36

may be willing to enter a CFA with the solicitor or client in respect of their fees

Question 37

Can an expert witness enter a CFA?

Answer 37

cannot enter a CFA, because their evidence must be impartial and therefore should not be capable of being influenced by the outcome of the case

Question 38

What should the solicitor take into account before entering a CFA?

Answer 38

 the chances of the client succeeding on liability;
 the likely amount of damages;
 the length of time it will take for the case to reach trial;
 the number of hours the solicitor is likely to have to spend on the case
o Practice note - solicitor should set the success fee in light of the risk assessment, and advise the client on how the risk assessment is reflected in the success fee (or at least be able to demonstrate that they gave very clear advice on how the success fee was arrived at)

Question 39

Herbert v HH law - success fee calculation?

Answer 39

client could not be said to have given informed consent to a 100% success fee applied as standard without any account being taken of the individual risks in the client’s case.

‘in the context of a conditional fee agreement, the amount of a success fee is traditionally related to litigation risk, as reasonably perceived by the solicitor or counsel at the time the agreement was made. Across the broad range of litigation, it would be unusual for it not to be

Question 40

Advantages/disadvantages of CFAs

Answer 40

 For client - provides security of knowing that the client will not receive a large bill from their solicitor at the end of the case
 For solicitor - opportunity of receiving higher fees, but also the risk of receiving nothing at all if the case is lost

Question 41

What is a damages-based assessment?

Answer 41

agreement in which the solicitor agrees to receive payment for their services only if the client is successful in their claim; and the amount of the solicitor’s fee is linked to the level of compensation/damages obtained.

 an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—
 (i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and
 (ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained.

Question 42

Procedure for a DBA?

Answer 42

if the client receives a financial benefit (e.g., damages paid by opponent) the solicitor’s fee is an agreed percentage of the compensation received
 known as a ‘contingency fee’ - payment is contingent upon success.
 if client loses, solicitor does not receive a fee

Question 43

Can a non-counterclaiming Defendant enter a DBA?

Answer 43

NO

Question 44

DBA - what happens if client wins?

Answer 44

 solicitor receives the agreed percentage of the damages recovered
 amount paid by client will be net of any costs payable by the opponent (i.e., costs to be paid by opponent will be set off against the contingency fee and the client will only have to pay the balance)

Question 45

DBA: If client loses?

Answer 45

 client will not be responsible for their own solicitor’s fees
 client may still be liable for the disbursements, and usually having to pay the opponent’s costs
 (so the after-the-event insurance would be appropriate here too)

Question 46

What is the cap on the DBA?

Answer 46

 DBA is subject to a cap on the level of the solicitor’s fee
 Cannot provide for a payment above an amount which, including VAT, is equal to 50% of the sums ultimately recovered by the client.
 Cap is inclusive of counsel’s fees, but not other disbursements
 Cap does not apply to appeal proceedings

Question 47

Does the cap include counsel’s fees?

Answer 47

no

Question 48

does the cap apply to appeal proceedings?

Answer 48

no

Question 49

DBA cap for personal injury cases ?

Answer 49

 Cap in personal injury cases - 25% of general damages received for pain, suffering and loss of amenity and damages for pecuniary loss

Question 50

DBA cap in employment cases?

Answer 50

35%

Question 51

Formality requirements for the DBA?

Answer 51

must
 be in writing
 specify the proceedings to which it relates
 specify the circumstances in which the fee is payable
 specify the reason for setting the fee at the level agreed

o If DBA is adjudged unenforceable, the client will not have to pay the solicitor anything

Question 52

Early termination / hybrid DBAs

Answer 52

The Court of Appeal held that s 58AA (and the regulations made under it) did not prevent a firm being paid in the event of early termination of the agreement by the client. The case is also authority for the use of so-called ‘hybrid-DBAs’ whereby a firm may receive concurrent funding via a DBA and some other form of retainer (eg discounted hourly charging rates in the event that the client loses the case).

Question 53

Disadvantage of DBA from solicitor’s POV?

Answer 53

 not commercially attractive because the level of damages recovered in civil litigation often means that fees received do not cover basic costs.
 entering a DBA is a considerable risk - it is only viable where the solicitor is confident not only that the client will succeed, but also that the opponent will pay both the damages and costs from which the solicitor’s fees will be taken

Question 54

Advantage/disadvantage of DBA for client?

Answer 54

 DBA may provide access to justice at relatively little risk
 Client may feel aggrieved when the solicitor ‘takes’ a significant slice of the damages in fees having apparently done little work (e.g., if case is settled early on)

Question 55

Enhanced rate: CFA vs DBA?

Answer 55

calculated by reference to an uplift in the solicitor’s usual hourly charging rate in CFAs, but is linked to the damages received in DBAs.

Question 56

Success fee and contingency fee - CFA vs DBA?

Answer 56

• The success fee is limited to 100% of the usual hourly rate in CFAs; but the contingency fee cannot exceed 50% of the damages in DBAs.

Question 57

Paying solicitor’s fee - CFA vs DBA

Answer 57

• In both arrangements, the client is not required to pay their solicitor’s fee if the case does not succeed, or pays a lesser amount depending upon the agreement.

Question 58

Client’s own disbursements - CFA vs DBA

Answer 58

• Neither CFAs nor DBAs cover the client’s own disbursements, or the opponent’s costs, which must be dealt with separately.

Question 59

How should the solicitor ensure that the client has before-the-event insurance?

Answer 59

• Solicitor should establish whether the client already has legal expenses insurance in place to cover the payment of their solicitor’s fees
• Lord Phillips MR; Sarwar v Alam - “In our judgment, proper modern practice dictates that a solicitor should normally invite a client to bring to the first interview any relevant motor insurance policy, any household insurance policy and any stand-alone before-the-event insurance policy belonging to the client and/or any spouse or partner living in the same household as the client.”

o the terms of the individual policy must be examined because it is unlikely to cover legal expenses in every type of case and may exclude or limit certain costs

Question 60

What will the insurer check?

Answer 60

the insurer must first accept the claim, and may not do so if, e.g., the case does not have a good prospect of success (generally more than 50%) or the case concerns issues that arose before the policy was taken out

Question 61

What should the solicitor check with the insurer?

Answer 61

o it must be checked whether the insurer will want the case to be conducted by a firm on its own panel of solicitors
o solicitor should establish whether any insurance policy covers the client’s liability for another party’s costs (if not, the client may be able to purchase after-the-event insurance for this)

Question 62

What is after-the-event insurance?

Answer 62

• Covers legal expenses incurred in making or defending a case.
  o available for most types of civil litigation (except family law)
  o taken out after the dispute has arisen

Question 63

Types of ATE?

Answer 63

will be specific to the case and the client’s needs
o usually covers liability for disbursements and the opponent’s costs
o possible to obtain ATE to cover the client’s own legal fees
o often coupled with a CFA, which does not protect client from liability for the opponent’s costs in the event of losing the case

Question 64

When will ATE be offered?

Answer 64

Risk - ATE will only be offered where the insurer is confident in the success of the case (usually 60% chance of success at least)

Question 65

What is the premium due under ATE?

Answer 65

premium payable will depend on the strength of the client’s case and the level of cover required.
o may be possible to arrange a ‘staged’ premium - i.e. additional instalments are paid if the case continues beyond certain defined stages
o client will bear the cost of taking out ATE themselves, as the premium is not recoverable from the other side by way of costs

Question 66

Restrictions for a solicitor recommending or arranging ATE

Answer 66

A solicitor who recommends or arranges ATE for a client will be carrying out insurance distribution activities.
o The solicitor must take account of the restrictions imposed by the FSMA 2000

Question 67

What is third party funding?

Answer 67

situation where someone, with no other connection to the case, agrees to fund the costs of litigation
o e.g., trade union, etc.
o most common - will involve a specialist litigation funding company which will agree to fund the costs of litigation in return for a fee payable from money received by the litigant at the end of the case

Question 68

When is commercial funding valid?

Answer 68

commercial funding will be valid in the absence of some kind of impropriety or wrongdoing: ‘the commercial funder who is financing part of the costs of the litigation
in a manner which facilitates access to justice and which is not otherwise objectionable’.

Question 69

Who often uses third party funding?

Answer 69

primarily used by commercial claimants
o Commercial funders take their fee from money recovered at the end of the case, so 3PF is not usually available to defendants unless they have a substantial counterclaim

Question 70

When will the commercial funder take on a case?

Answer 70

o Commercial funder will only take on a case where there is a good chance of success, and takes into account factors such as:
 usually at least 60%
 size of likely award is also important (would not take on cases where the litigant would be left with less than 50% of the amount recovered after deduction of the funder’s fee)
 strength of any counterclaim
 likely timescale of litigation
 ability of the opponent to pay

Question 71

Aim and extent of 3p cover?

Answer 71

o 3PF is aimed at covering the client’s own costs and disbursements
o what is covered depends on the terms of the agreement
 e.g., it is common for the funder to only cover part of the solicitor’s fees with the remainder being covered by the client or via a CFA

Question 72

Liability for the opponent’s costs in the event that the client loses the case?

Answer 72

o costs are in the discretion of the court with the result that the funder was ordered to pay all the opponent’s costs from the date of the funding arrangement

o a third party costs order (not subject to a cap) was justified given the level of control that the funder had over the proceedings

Question 73

What will the funder receive if the case is successful?

Answer 73

• If the case is successful the funder will receive their fee from the amount recovered by the client.
• How the fee is calculated depends on the terms of the funding agreement. Various methods of calculation are employed, for example, the fee may be a multiple of the amount spent on legal fees.
• R (on the application of PACAAR Inc) v Competition Appeal Tribunal: agreements which provide for the funder’s fee to be calculated as a percentage of the amount recovered are DBAs and, as such, are unenforceable unless they comply with the regulations governing DBAs
• However, in March 2024, the government announced its intention to introduce legislation to return the position to that which existed before the Supreme Court ruling.

Question 74

Professional conduct considerations for the solicitor?

Answer 74

o Minimising the influence which the funder has over the conduct of the case will reduce the risk of a conflict of interest arising
o Solicitor must be wary of breaching client confidentiality when asked to provide the funder with information and/or documentation relating to the case

Question 75

What is legal aid and who administers it?

Answer 75

• Legal aid = means by which those who are eligible can have some or all of their legal fees paid from public funds
• Governing statute - legal aid in civil and criminal cases is primarily governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Administrator - legal aid scheme is administered by the Legal Aid Agency (part of MoJ)

Question 76

When can a solicitor carry out Legal Aid work?

Answer 76

o To carry out legal aid work, solicitors must have a contract with the Legal Aid Agency which covers the type of work relevant to the client’s case (e.g., criminal defence work, care proceedings, immigration, etc.)

o Firms with a contract are subject to an annual audit by the LAA to ensure that their files are being run properly and that the firm’s case management systems are working correctly

Question 77

Can a firm refuse to accept instructions / act for client under a legal aid scheme?

Answer 77

o Even if the firm has a relevant contract, this does not oblige them to accept instructions from the client and/or act for the client under the legal aid scheme
 firm can refuse to act if they consider the case to be unremunerative
 firm should (as good practice) advise the client to seek legal advice elsewhere if they decline the instructions

Question 78

What if a solicitor does not undertake legal aid work themselves but is of the view that a client may be entitled to legal aid?

Answer 78

solicitor should inform the client accordingly at the outset of the case and, if necessary, tell the client to seek other advice.

In this case the Court of Appeal held that a solicitor must from the outset of a case consider whether a client might be eligible for legal aid. The Court observed that if the financial position of the client had been considered properly, and considered in the context of whether they might be eligible for legal aid, the result would have been advice to go to a different firm offering legal aid at a very early stage. The solicitor had failed to give this advice and, as a result, the firm was denied its fees.

Question 79

3 duties of a solicitor who acts for a client in receipt of legal aid?

Answer 79

o solicitor must inform the court and the other parties that the client has the benefit of legal aid
o solicitor must inform the LAA if the client acts unreasonably (e.g., refuses a reasonable offer of settlement) or has given inaccurate or misleading information to the LAA
o duty to the LAA overrides the solicitor’s duty of confidentiality to the client

Question 80

Claiming legal aid costs?

Answer 80

o At the end of the case, solicitor will claim costs from the LAA
o Will be set levels of remuneration for legal aid work (usually lower than amt paid by a privately paying client in an equivalent case)

Question 81

Controlled vs licensed costs?

Answer 81

• Civil legal aid falls into two categories:
  1. controlled work - where it is for the solicitor to determine the client’s eligibility
  2. licensed work - which is authorised by the LAA on a case-by-case basis

Question 82

What is Legal Help?

Answer 82

(controlled work)
 Covers the solicitor giving basic advice and limited steps following on from that advice
 Might involve drafting a letter or obtaining information from a third party

Question 83

What is Help at Court?

Answer 83

 Covers advice and assistance, including advocacy
 The work which the solicitor carries out must be in relation to a particular hearing, NOT representation in the case generally
 e.g., client is subject to possession proceedings to which there is no defence, but the client needs help in putting arguments to the court with the aim of postponing or delaying eviction

Question 84

What is Legal Representation?

Answer 84

Licensed work
 Available to a client who is a party to proceedings or who is contemplating starting proceedings
 can cover conduct of the client’s case, if necessary, up to and including representation before court

Question 85

On what basis can Legal Representation be granted?

Answer 85

 Can be granted on an investigative or full basis
 Investigative - covers the solicitor’s work in assessing the strength of the case
 Full - covers the issuing and conduct of proceedings, including advocacy at the final hearing

Question 86

Limitations for Legal Representation imposed by the LAA?

Answer 86

LAA will usually place limitations on the legal aid certificate which restricts the scope of the representation which can be given and/or sets a maximum amount that it will pay for legal fees
 if the case requires more work, the solicitor must apply for an amendment to the certificate and/or an increase of the costs limitation

Question 87

Can legal rep be obtained in an emergency?

Answer 87

Legal Representation can be obtained where the client is in urgent need of legal advice and assistance
 e.g., if the client is facing imminent homelessness or is under the threat of domestic violence.

Question 88

What is the scope of legal aid?

Answer 88

• Legal aid is only available for a case if it is of a type specified under Sch 1 Pt 1 Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Legal aid unavailable for:
  o negligence claims for personal injury
  o divorce
  o family disputes about children
  o matters arising out of the carrying on of a business (incl claims brought or defended by sole traders)
  o will not usually be available for cases that could be financed by a CFA
• Legal aid is available for:
  o cases where the client faces homelessness
  o family cases where the client is a victim of domestic abuse
  o cases where the client has been subject to discrimination
  o immigration cases
  o care proceedings

Question 89

What if a case falls outside of Legal Aid scope?

Answer 89

• Even if a case falls outside the scope of legal aid, it may still be possible to obtain funding if the circumstances are ‘exceptional’
  o LAA must be satisfied that refusal would be a breach of the client’s human rights (high threshold)
• Must ALWAYS demonstrate that the client is eligible based on:
  o merits of the case and
  o client’s financial circumstances (means)

Question 90

What do all cases need to show in order to be eligible for legal aid?

Answer 90

• Must demonstrate that the client is eligible based on:
  o merits of the case and
  o client’s financial circumstances (means)

Question 91

What is the Merits test generally?

Answer 91

• Test depends on the form of civil services required and the nature of the case
• Common elements - all tests involve an assessment of the client’s prospects of success and the application of a cost-benefit criteria

Question 92

What is the Merits test for Legal Help + Help at Court?

Answer 92

• ‘sufficient benefit test’
  o Legal aid will only be available if there is a sufficient benefit to the client, having regard to the circumstances of the case, including the client’s personal circumstances, to justify the work being carried out

Question 93

What is the Merits test for Legal Representation?

Answer 93

dependant on the client’s prospects of success
o Will not be granted if those prospects are assessed at less than 50%
o Client must also satisfy a general merits test or a specific merits test:
 If the case involves a monetary claim the merits test will involve a balancing of the damages that are likely to be received against the likely costs involved
 In a non-monetary case - test is whether the benefits to be gained justify the likely cost such that a reasonable privately paying client would be prepared to proceed
o Will be refused if the LAA considers that other funding is available to the client (e.g., legal expense insurance) or the case is suitable for a CFA

Question 94

What is the Means test?

Answer 94

• Client must produce full details of their financial circumstances to enable the means test to be carried out
• Client will qualify if their capital and income (+ resources of any partner) does not exceed £8000 (£3000 for immigration cases)
  o If they exceed £8,000, they do not qualify for legal aid

Question 95

Welfare clients and the Means test?

Answer 95

if the client is in receipt of one of the following welfare benefits, they will automatically qualify for legal aid on the basis of income (BUT THEIR CAPITAL MUST STILL BE ASSESSED)
o universal credit
o ongoing entitlement to income support
o income-based jobseeker’s allowance
o income-related employment and support allowance
o guarantee credit element of pension credit

Question 96

How to calculate gross income of a client?

Answer 96

o If client’s gross monthly income exceeds £2657, the client does not qualify for legal aid (higher if the client has 5+ children)
o If client’s gross monthly income is £2657 or less, the assessment makes certain deductions (to reflect the client’s family circumstances and their basic living expenses) to arrive at a figure for the client’s disposable income
 Will qualify if their monthly disposable income is less than £733

Question 97

When must a client contribute towards legal costs?

Answer 97

o For licensed work (ie legal representation):
 If monthly disposable income is above £315 or
 capital is above £3000
legal aid will be offered on the basis that the client make a contribution towards their legal fees
o If the contribution is from income, it will be in the form of monthly payments

Question 98

What is the statutory charge?

Answer 98

if the client benefits financially from the case, any money or property the client receives can be used in repayment of the solicitor’s fees

Question 99

When does the statutory charge arise?

Answer 99

the statutory charge arises if the client is wholly or partly successful in the proceedings, or obtained an out-of-court settlement which resulted in the client gaining or keeping money or property
o Usually, client must have been in receipt of Legal Representation (but not always the case)

Question 100

LAA’s procedure for recouping money?

Answer 100

1. LAA claims any money paid pursuant to a costs order made in the client’s favour
2. If a shortfall remains, the LAA will retain any contribution paid by the client under the terms of the offer of legal aid
3. If there is still a deficit, any money recovered or preserved in the proceedings will be applied to make up the shortfall

Question 101

Solicitor’s duties in the statutory charge?

Answer 101

required to pass any money payable to the client under a court order or out-of-court settlement to the LAA

Question 102

When is the statutory charge generally payable?

Answer 102

Immediately
 If postponed, the charge will be protected by registration against title to the property (and simple interest applied) so that fees will be recouped when the property is eventually sold

Question 103

What should a solicitor inform the client about regarding the statutory charge?

Answer 103

o client should fully understand how the statutory charge operates and be constantly reminded of it
o client should be advised periodically as to the costs incurred to date

Question 104

Criminal legal aid: advice at the police station?

Answer 104

• Anyone attending at the police station (whether under arrest, or attending voluntarily) is entitled to free legal advice, irrespective of their means.
• The solicitor will claim for the work done under the Police Station Advice and Assistance Scheme.
• The solicitor will receive a single fixed fee regardless of the nature of the case or the time actually spent

Question 105

What is the duty solicitor scheme?

Answer 105

• Duty solicitor - will be on a rota to attend a mags court on given days
  o will be available to advise any D who does not have their own solicitor but who requires legal advice and/or representation
  o will claim costs in attending court from under the Advocacy Assistance (Court Duty Solicitor) Scheme
• Duty solicitor will be called out to attend the police station to advise anyone who has been arrested and does not have their own solicitor
• A solicitor advising/acting under the duty solicitor scheme cannot refuse instructions on the basis that to do so would be unremunerative

Question 106

Application for legal aid test - criminal cases?

Answer 106

• Legal aid will only be granted if the client can show that both:
  o the merits of the case; and
  o their own financial means
  are such as to justify public funding.

Question 107

What is the interests of justice test?

Answer 107

• Assesses the merits of the case
• Requirements - client must show that it is in the interests of justice for them to receive public funding to cover the cost of their legal representation
• Factors taken into account: (Sch 3, para 5(2) Access to Justice Act 1999)
  o whether the individual would, if any matter is decided against them, be likely to lose their liberty or livelihood or suffer serious damage to their reputation;
  o whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;
  o whether the individual may be able to understand the proceedings or state their own case;
  o whether the proceedings may involve the tracing, interviewing, or expert cross-examination of witnesses on behalf of the individual; and
  o whether it is in the interests of another person that the individual is represented
• Additional catch-all - client can show that there is ‘some other reason’ that makes it in the interests of justice for them to be represented
• More serious the consequences for the client or the more complex the proceedings, the more likely it is that the client will be able to satisfy the test

Question 108

Automatic satisfaction under the interests of justice test?

Answer 108

if:
o the client is under 18 or
o it is a crown court trial

Question 109

Means test for crim cases - automatic satisfaction?

Answer 109

o client is under 18 or
o receives one of a number of welfare benefits (see list above)

Question 110

Means test generally for criminal cases?

Answer 110

• All other clients:
  o must submit full details of their financial circumstances
  o Procedure:
  1. rudimentary assessment will be carried out by taking the client’s gross annual income and dividing it by a set figure according to whether the client has a partner and/or children - ‘adjusted income’
  2. Determine the intensity of the means test:
  1. Mags court cases - the level of adjusted income will either put the client at one end of the spectrum by determining that the client is eligible or not, or put the client into the middle ground which necessitates a full means test being carried out
  2. Crown court trials - those at the higher end of the spectrum will also be subject to a full means test

Question 111

When will a full means test be needed?

Answer 111

1. Mags court cases - the level of adjusted income will either put the client at one end of the spectrum by determining that the client is eligible or not, or put the client into the middle ground which necessitates a full means test being carried out
2. Crown court trials - those at the higher end of the spectrum will also be subject to a full means test

Question 112

Adjusted income of £12,475 or less?

Answer 112

mags - eligible
cc - eligible

Question 113

Adjusted income of more than £12,475 but less than £22,325

Answer 113

mags - full means test needed
cc - full means test needed

Question 114

Adjusted income of £22,325 and above?

Answer 114

mags - NOT eligible
CC - full means test needed

Question 115

What is the full means test?

Answer 115

o Full means test - takes account of the client’s family circumstances and involves the deduction of some essential expenses from the client’s income (e.g., mortgage repayments or rent) to produce a figure for the client’s disposable income

Question 116

Mags court - full means test?

Answer 116

o Mags court - purpose of the means test is to determine whether the client is eligible for legal aid or not
 threshold - annual disposable income of £3,398 or less

Question 117

Crown Court - full means test?

Answer 117

purpose is to determine whether the client can afford to make some contribution towards their legal fees from income or capital
 threshold for contributions - disposable income more than £3,398 and less than £37,500

Question 118

What is a representation order?

Answer 118

• Successful criminal legal aid application = representation order being issued and sent to the solicitor

Question 119

Effect of a representation order?

Answer 119

confirmation that the solicitor may start incurring legal costs on the client’s behalf, which will be covered under the legal aid scheme

Question 120

Scope of a representation order?

Answer 120

o the costs covered depend on the terms of the representation order
o can be extended if appropriate, e.g., to cover the costs of an appeal