Page 23 - PIC-Magazine-Issue-22-Spring-Summer
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Megan Kutter and Beth Brayshaw of Bidwell Henderson share their Top Legal Tips for 2024.
 Family, non-family (Civil) or COP certificated cases should be registered as a Very High Costs Case (VHCC) when the total net case costs are likely to exceed £25000.00 including profit costs, counsel fees and disbursements, not VAT. Net costs don’t need to have reached £25000.00, the only requirement is that they are likely to exceed £25000.00. Complex NAI or CAPA cases are often registered as VHCC at an earlier stage. The certificate costs limit should cover all work done to date up to registration (may be under £25000.00). The certificate scope limit should be in place to cover the next portion of work. Out scope work cannot be contracted.
VHCC’s are managed through High Costs Case Plans (HCCPs), which set out incurred costs and forecast costs to agree, with the LAA, an upper costs limit to the certificate.
Care Case Fee Scheme (CCFS)
Mandatory in s31 cases, unless granted escape.
Can be requested in private law cases following the PLO, will be permitted if costs neutral.
All work included in a schedule of ‘Events’.
Set rate for each Event subject to case circumstances.
No individual item of preparation is claimable, bar a very narrow exception for Written Submissions and in scope Court of Appeal work.
Traditional / Hourly HCCPs
All COP matters. Work is claimed at prescribed rates.
Most private law family cases, any escape s31 cases. Work is claimed at prescribed rates and escape CPGFS/PFLRS schemes, as well as FAS for the provider (but not Counsel, save for other FAS exceptions).
Most civil cases. Work is claimed at prescribed rates up to £25000.00, thereafter risk rates.
The HCCP sets out stages up to the next tranche of work or listing.
Funding Checklist
A simplified plan, usually preferred in Clinical Negligence, CAPA/HRA cases.
Work is set out in defined stages including Investigate Work, up to but excluding Trial including JSM, and Trial.
Work is claimed at prescribed rates up to £25000.00. Thereafter risk rates apply.
Managing HCCPs
All three types of case plans are ‘living’ documents to be updated as the case progresses. Adjustments go up or down as required.
HCCPs are agreed and contracted with the LAA. If the forecast work is not agreed first time, you should provide further justification to negotiate an agreement.
CCFS plans do not follow stages and will generally be updated as required up to the Fact Finding or Welfare Hearing.
Where work is forecast in stages, the individual VHCC contract requires updates to be provided for any substantive change in the case. This is generally within reasonable notice of the substantive change and/or the stage end.
Funding Checklists will usually set out the forecast of the entire case to Trial, but the stages can and should still be adjusted during the lifetime of the case if there are substantive developments.
Getting Paid
100% payments on account (POAs) claimed once contracted, for incurred events. At conclusion the final claim is submitted.
Traditional and Funding Checklists
80% POAs claimed in line with the general contract terms.
Fully costed claims can be submitted for assessment as each stage completes. Where inter partes costs may be recovered at the conclusion it may be preferable to submit POAs which could be recouped later when costs are recovered.
Party Costs Orders
Where costs are recovered, part way or at the conclusion of the case, there are separate contract terms which apply to VHCCs.
If full costs are awarded and recovered, generally
no claim would be made to the Legal Aid Fund.
The VHCC contract includes a final payment choice which removes legal aid only costs. Alternatively recovered costs can be paid into the Fund and claim under the contract within 3 months of the end of
the case. If electing to retain IP costs, outcomes must be reported, and all POAs/stage claims recouped.
Where partial costs are awarded and recovered, an application under 5.12 of the Specification, can be made to claim contract work for which 100% IP costs are not ordered. This application will be granted where the terms under 5.9 of the Specification are met.
Risk Rates
Flat rates for Solicitor and Counsel apply once the total case costs exceed £25000.00
Special Ring Fencing rules may permit a small exception where work at codified rates for Counsel or Solicitor are below £5000.00
Codified rates may be sought in specific later stages when costs are unlikely to be recovered (e.g. where acting as a Respondent in appeal permission stages under CPR PD 52C par20.)
Consider, particularly when IP costs may arise
Your retainer
The indemnity principle does not apply to LAA rates but does apply to scope of funding
Any statutory charge implications for the funded client
Standard Civil Contract 6.53 rules on interest on costs recoveries Spring & Summer 2024

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