THE BACKGROUND The Funding Code, contracts and the Special Cases Unit (SCU) 1. The Funding Code – Section 6 “Very Expensive Cases” includes extra criteria for very high cost civil cases. Once referred to the SCU, there must be a Case Plan and proposal for a fully costed stage. Each case will have an individual contract based on the agreed Case Plan and the agreed price for each fully costed stage. The contract will allow progression of the case stage by stage, with an agreed price for each stage. The Case Plan is a single evolving document, which will change and expand as the case develops; in the early stages of a case future events may be more difficult to predict and contain fewer details. As the case progresses more detail will be added to the plan and amendments will be made in the light of Court Directions, unforeseen events and new evidence. The SCU will authorise work in stages and authority will be given only for fully detailed and costed stages. 2. Details of what must be included in a Case Plan and a fully costed stage, and how they should be used, are set out later in the pack. Criteria for funding very high cost cases are set out in Section 6 of The Funding Code and in Section 15 of the Decision Making Guidance (Vol. 3 of the Legal Services Commission Manual). 3. The Commission has established a Special Cases Unit to manage these cases, based in the Brighton Regional Office. There are also units in the Docklands Exchange Tower site and in our Cardiff and South Tyneside Regional Offices. For details of where to send correspondence and Case Plans please see paragraph 11 below. What are these cases? 4. The Referral Criteria are set out in rule C23 of the Funding Code Procedures and paragraph 3C – 122 of the Decision Making Guidance. Put simply, any case where the costs are anticipated to, or actually do, exceed £25,000 (including all profit costs with enhancement, disbursements and any counsel’s fees but excluding VAT) will be referred to the Special Cases Unit. In family cases these will typically be public law Children Act cases with over 10 hearing days, or cases with multiple parties, or cases with a proliferation of experts and assessments. Very few private law cases or ancillary relief cases become high cost but a few do. Certificates with first instance proceedings that go on to an appeal are likely to meet the criteria as it is the whole costs of the “closely connected” matter that are relevant. The Commission has a discretion to treat more than one set of proceedings or certificates as a “single case” if they appear to the Commission to be closely connected or proceeding together through the Court – Funding Code Procedure 23 5. The high cost case procedures should be started once you or the Commission are clear that the costs in the case are more likely than not to exceed £25,000. 6. A case under the Trusts of Land and Appointment of Trustees Act 1996 is not treated as a family case. Please see the guidance in respect of Civil Non Family cases. What if I act for more than one party under several certificates? 7. Cases where you are acting for more than one party (several children, both parents etc.) we will treat as one matter or case for the purposes of the referral criteria so that it is £25,000 in the case and not £25,000 per certificate which is relevant. You will however only have to produce one Case Plan for the whole case. Will you increase the costs limit to £25,000 and I’ll send the Case Plan then? 8. The short answer is “generally no”. If the costs in the case are likely to exceed the threshold, the Case Plan should be completed and sent as soon as possible and there will be no further increases in the costs limitation pending agreement of the Case Plan. The need for a Case Plan arises when you become aware that the costs in the case will or are likely to exceed the threshold and not when the costs limit on the certificate has reached £25,000. Far more problems arise through late submission of a Case Plan than early submission. In exceptional circumstances we may increase the costs limitation if the case may change direction significantly at a particular hearing or after a particular event and the costs up to and including that next point are estimated at a figure below £25,000. This will need to be negotiated separately with us. When does the contract start? 9. The contract starts when the certificate is first limited to the work set out in the fully costed stage of the Case Plan. It stays in force while the certificate is in force. Once the contract has started, the case will be managed through a series of fully costed stages until it ends. Each fully costed stage will state the cost of the stage broken down into profit costs, disbursements and counsel’s fees. 10. The contract start date will be the date of amendment to the certificate (i.e. the amendment limiting the work to that specified in the Case Plan). However, your staged costs – as set out in your Case Plan- will be back-dated to the date when you first notified us that your costs would exceed the existing limitation and your “Costs to Date” period will end at this point. See paragraph 16 below. Where do I send my Case Plan? 11. The Cardiff Special Cases Unit only deals with high cost family cases from the Cardiff and Bristol offices where authority to instruct Queen’s and Junior Counsel or two junior counsel has been granted. All other high cost family cases for Wales and Bristol are managed by the South Tyneside High Cost Family Unit except all Child Abduction Act or Trusts of Land and Appointment of Trustee Act cases (including those with Queen’s Counsel or two junior Counsel), which are managed by the London Special Cases Unit. The London Special Cases Unit deals with high cost family cases from the whole of England where authority to instruct Queen’s and Junior Counsel or two junior counsel has been granted. They also deal with all high costs Child Abduction Act cases and all high costs Trusts of Land and Appointment of Trustee Act cases for England and Wales. The South Tyneside High Cost Family Unit manages all other high costs family cases for England. The South Tyneside High Cost Family Unit deals with all high costs family cases for England and Wales except Child Abduction Act and Trusts of Land and appointment of Trustees Act cases which are dealt with by the London Special Cases Unit. South Tyneside also do not deal with high cost family cases where authority for Queen’s Counsel or two junior counsel is sought and is then granted. Such cases are managed in the Cardiff Special Cases Unit for Wales and Bristol and the London Special Cases Unit for England. Please also note that because we must be flexible with our resources some cases may be transferred between any of the units.Please be careful to note where responses should be sent (See contact details at the end of this document) To assist the relevant unit should they need to contact you, please include your email and telephone number details on the front page of the case plan. How long does it take the Commission to process Case Plans? 12. We aim to make the first substantive response within 8 weeks of receipt of the Case Plan. Sometimes this may mean being able to agree the Case Plan and send you a contract or we may have substantive queries to raise. On average a contract should be issued within 8 to 12 weeks of receipt of the Case Plan. This is why it is so important that a case is identified as high cost as early as possible and that a Case Plan containing all necessary information is submitted as soon as possible. ”What happens if I need an urgent amendment to the scope of funding or prior authority for disbursements?” 13. If there is the need for an urgent amendment or authority it is preferable that you submit a CLSAPP8 with the Case Plan (or without the Case Plan if the urgency so dictates) as this helps us identify that an urgent amendment is required. Where necessary we may deal with the urgent step as a preliminary issue and deal with the costs later. Otherwise you should clearly indicate in the covering letter with the Case Plan if there is the need for a scope amendment or prior authority preferably in a bold heading with any key dates/ events highlighted so that we can prioritise the case accordingly. 14. If the urgent step arises after the Case Plan has been submitted you should send a CLSAPP8 to whichever unit is managing the Case Plan, clearly marking the form ‘Family VHCC Case’ ”How can I continue to work if I have reached my costs limit and the Case Plan has not yet been agreed?” 15. This is likely to happen in a number of cases. It is important to ensure that you have the scope (that is the certificate accurately describes the proceedings that you are representing the client in and the extent of the work that you are undertaking) and any prior authorities necessary to run the case but on occasion the costs in the Case Plan may not be agreed until after the work has been undertaken. Whatever agreement is reached as to costs will have retrospective effect provided that you have notified us that the case is likely to be high cost. 16. The starting point is the point at which you notified us that you needed costs in excess of the existing limitation. This may well be when you first submit the Case Plan or when you apply for costs in excess of the referral limits on form CLSAPP8. At that point your costs to that point will be limited to the existing costs limit and all subsequent costs will be subject to negotiation and agreement in the Case Plan. In the Case Plan the “Costs to Date” section will be up to the date you notified us of the need for further costs and stage 1 of the future costs will be from that date. In exceptional cases where there is genuine urgency you can contact the relevant unit by letter, fax, telephone or e-mail to say that your costs will now exceed the threshold and that you will be submitting the Case Plan imminently. 17. In those circumstances the Commission does not accept that practitioners can refuse to continue to act in the case whilst the costs in the Case Plan are being negotiated. This would be a disservice to both the client and the court process. Paragraph 15.2.5 of the Funding Code guidance states; “Consideration of the Case Plan will take time to deal with and will often necessitate the costs position being resolved with retrospective effect. Provided the scope of the certificate covers the proceedings and the work being done, the costs position will be resolved retrospectively back to the date of the request for amendment to the costs limitation or the date of the Case Plan whichever is earlier. Considering and agreeing responding to a Case Plan is more time consuming than handling a request for an increase of a costs limitation where the costs will at the end of the matter be subject to detailed assessment. Agreeing a contract price may often necessitate an exchange or correspondence or of telephone calls to reach agreement. Solicitors and barristers should satisfy themselves that they have the necessary scope on the certificate to act, and then continue to do so whilst the costs position is resolved. Therefore, there will be no effect on the court timetable and judicial management of the case caused by the case planning process.” 18. Costs will only be at risk if work is undertaken beyond the existing costs limitation before the Commission is notified of the need for further costs and/or work is undertaken before a necessary scope change. 19. The date at which the “Costs to Date” ends and the Stage One costs commence is fixed and will not change. If it becomes necessary, for whatever reason, to amend the Case Plan before agreement of the first Stage or Stages of the Case Plan there will be no change to this date. If a revised Case Plan is submitted the Costs to Date period does not change to accommodate costs up to the point of the submission of the revised/ amended Case Plan – the relevant date remains the date at which the LSC was notified that the case met the referral threshold – see paragraph 16 above What happens regarding the pre-contract costs (Costs-to-Date)? 20. It will usually be the case that at the time a contract is entered into work has been undertaken under the certificate. In the Case Plan these are known as the “Costs-to- Date” or pre-contract costs. Either after approval of your contract or when submitting your Case Plan you will need to submit your claim for the pre-contract work for assessment by the Unit. We are keen to simplify payment for this work and avoid the need for a costs draftsman to prepare a detailed bill. This claim will be on a fully completed CLSCLAIM1. If you are dissatisfied with the assessment of your bill there will be a right of appeal. The costs, once agreed, will be paid by the Commission within 28 days. The rates you will use are those you would expect to get on assessment. That approach will continue throughout the life of the case in family cases. USE OF A CASE PLAN 21. As soon as a case has been identified as meeting the referral criteria the most important action is to produce an acceptable Case Plan. The case assessor will consider your assessment of the case, the legal and factual issues to be investigated and resolved, the objectives you wish to achieve, the favourable and unfavourable factors in pursuit of those objectives, the team personnel including counsel and experts and their experience and expertise. 22. A standard Case Plan format is attached to this pack which is designed to assist you in producing a plan as simply as possible and contains all of the information we need to be able to assess the case properly. It sets out a description of the case, your assessment of its prospects, the legal and factual issues to be investigated and resolved, details of costs to date, and the selection of counsel and experts to be used on the case. There is also an example of a completed Public Law childcare Case Plan. Care cases represent the majority of high cost family cases. An electronic copy of the Case Plan in Excel format can be sent if you contact the relevant unit managing your case and provide your e-mail address. How is the case information used? 23. The Summary of Case should be a detailed history of the case to date and should include within the body of the text or as a separate schedule details of all hearing dates to date. The Summary of Case is the primary source from which we will make funding and costs decisions so it is vital that this is comprehensive. It will provide the information to justify both merits decisions and also to support the costs in terms of how the case is managed, the level of costs claimed, and the levels of enhancement to be applied. The Objectives will explain what is in issue and what outcome is likely to be achieved. The Case Analysis, Funding Code Assessment and Case Theory will have greater relevance for private law proceedings than Public Law and will succinctly justify why funding should continue. What if the client has a financial interest in the costs? 24. If the client has a financial interest in the costs paid out because of either contribution payments or the potential impact of the statutory charge, they should be sent copies of Case Plans and costed stages and given an explanation of how they might be affected. This is similar to the obligations in respect of bills for detailed assessment. How much detail do you need in respect of the pre-contract costs “Costs-to- Date”? 25. The example Case Plan in the appendix shows how this should be laid out – also see below. We need basic information to show that the correct prescribed rates have been applied and how you have applied enhancement. We need to know the total hours so far incurred for each area of work i.e. preparation, attendance on counsel, travel, advocacy etc. We will also need a global figure for counsel’s fees to date and other disbursements incurred to date. 26. Whilst these costs will be subject to detailed assessment by us this basic level of information is required with the Case Plan so that we can be assured that the costs for this period have been appropriately calculated and that there are no difficulties with the costs incurred against the existing costs limitation. We will not be able to agree the Case Plan without this information. What stages will normally be applied? 27. The stages must reflect the type of case and the case management requirements of the courts and should enable the assessment of merits and the continuation of funding to be adequately considered. Detailed costings should normally be provided for the current listed timetable. If, in a Care case, there is a listing up to final hearing then detailed costed stages should be provided up to then. If the timetable is only up the threshold/fact-finding with disposal/welfare to be listed later then detailed costings need only be provided up to the listed hearing. 28. Similarly in an ancillary relief case if the current listing is only to FDR then detailed costings need only be provided to that stage, but as costs benefit and alternative funding is a consideration limited details should be given of your estimate of costs to final contested hearing. The latter stage can be fleshed out when the final hearing has been listed. 29. There is no hard and fast rule as to how long a stage should be or how many stages there should be. On the one hand it is an advantage to agree stages as far into the case as possible to avoid having to come back with amended Case Plans for new stages but on the other such Case Plans are then susceptible to amendment as unforeseen activities arise. We would suggest that having fewer and longer stages generally leads to less need for further amendments particularly in public law cases (but only where future work can be anticipated with sufficient certainty). How are experts’ fees and other disbursements dealt with? 30. Experts’ reports and other disbursements will be assessed as to the reasonableness to incur the disbursement and as to a reasonable amount (having regard to both hourly rates and the global figure). The guidance on authorities is applicable and can be located in Volume 1, Part D, Legal Services Commission Manual and on the LSC website at www.legalservices.gov.uk/civil/guidance/fundingcode.asp Information about disbursements to be incurred must be provided in the Case Plan. Wherever possible you should submit a breakdown of the anticipated cost showing the expert’s hourly rates and an estimate of the time to be taken for the work. If you have not obtained this information from the expert before you submit a Case Plan you will need to put in your best estimates of the costs. These will be incorporated into the overall agreed price for the stage. We may agree the Contract with this information and you may then apply to amend the contract price if the costs as estimated by the expert are greater than previously estimated or we may agree that the disbursements will be subject to assessment at the conclusion of the stage on the information then available and you will need to make the expert aware that this is so. Hopefully this may encourage experts to provide appropriate details of their fees in a timely manner. Work that is excluded from public funding cannot be authorised or covered in any event. 31. You may ask us to consider and agree the disbursement in respect of costs that you need to incur pending the approval of a costed stage of the Case Plan. You can do this be using a CLSAPP8 prior authority application request form or by urgent fax or e-mail. What rates are applied? 32. For solicitors the appropriate prescribed family rates are applied. The Legal Aid in Family Proceedings (Remuneration) Regulations 1991 (as amended). The current rates can be found in Volume 1 Part B of the Legal Services Commission Manual and on the LSC website under the Unified Contract (payment annex, note that the payment annex applies to funding granted after 1st October 2007). 33. In family cases where mixed rates apply such as certificates covering both private law and public law proceedings then only one set of rates is applied to all the work, which would usually be the rates that first applied under the certificate. 34. You should be careful to apply the right rate to the right activity. Common errors include applying the preparation rate to time spent in conference with counsel or applying the preparation rate to time spent dealing with routine letters and calls. Each of these activities has its own rate. In the case of routine letters and calls these can be charged at the prescribed rate per item or an equivalent hourly rate which is ten times the item rate as routine items are considered as six minute units. 15% enhancement can be applied to routine correspondence undertaken by a Panel member. How is enhancement considered?35. In considering enhancement the case assessor will have in mind the relevant rules and regulations and precedent case law and in particular the guidance contained in the Commission’s Civil Costs Assessment Guidance. 36. You will need to propose and justify the enhancement to be applied by ensuring that the case information includes sufficient detail to explain the full facts and circumstances of the case that would have a bearing on enhancement. You will also ensure the “Team Personnel” details a fee earners membership of any relevant panels and you will specify what level of enhancement you have applied against each type of activity. 37. Enhancement rates can be applied to the whole case, to classes of work or to individual items. In general, one of the latter two approaches will be preferable. It would be less usual to allow enhancement on routine letters or telephone calls or travel and waiting. However, one exception would be where the enhancement is being awarded owing to speed, for example securing an out of hours injunction, where it may be inappropriate to differentiate between time drafting and attending and making urgent telephone calls or sending urgent letters when applying the enhancement. 38. Other issues which may have a bearing include:

• The extent to which the solicitor has relied on counsel to manage the case
• Exceptional expedition as may be found in fast moving Child Abduction Act or

similar cases

• If a non-panel member is the principle fee earner on the case they will still be

entitled to enhancement if the case is exceptionally complex or they have shown exceptional competence or expedition. 39. This is of course a non-exhaustive list and all of the facts and circumstances of each individual case must be considered which is why it is so important that the case information in a Case Plan is comprehensive. How are my estimated future costs laid out in the Case Plan? 40. You must show each anticipated activity in chronological order with known dates or estimated time frames, the estimated time for each activity, the prescribed rate applied and the suggested enhancement again for each activity and the total cost for that activity. Counsel’s fees and disbursements should be included in the Case Plan chronologically with the solicitor’s costs. Where counsel’s fees have been calculated on the basis of the Family Graduated Fee Scheme the detail to support their fees should be in a draft CLAIM5 attached to the Case Plan. Where their fees escape the scheme the detail of how their fees have been estimated should be included in the Case Plan, including estimated time and hourly rate. At the end of the Case Plan there will be a detailed cost summary. Please see the example Case Plan in the appendix and below. Can I include my time spent preparing the Case Plan? 41. Yes. We will always allow a reasonable amount of time for preparing the Case Plan and if necessary for subsequently amending the Case Plan. This is claimed as preparation time and can include enhancement. In a moderate case, as a rule of thumb, we would expect to see 2 to 4 hours preparation time. In a more complex case 4 to 6 and for the most complex cases 6 to 8. Of course the particular circumstances of the case may be relevant as will the quality of the Case Plan. How are counsel’s fees agreed in a Case Plan? 42. Counsel must provide the solicitor with details of their proposed fees and full justification for them. These are then included in the Case Plan. 43. Any case that is accepted as a high cost case escapes the Family Graduated Fee Scheme (paragraph 10.4.4(c) Volume 1 Part D LSC Manual). If initially the case is considered to have a time estimate of more than ten days, it will be remunerated without reference to the Graduated Fee Scheme. The contract price will be set in advance on the basis of the estimated trial length, applying rates applicable to counsel in an ex post facto assessment. If the estimated length of the main hearing is less than ten days, the contract price will refer to the Graduated Fee Scheme (paragraph 10.6.6 Volume 1 Part D). Note it is the number of days in the case not the number of days undertaken by any individual counsel that is relevant. 44. If the number of main hearings, as listed, is ten or less counsel’s fees will be agreed on the basis of the Family Graduated Fee Scheme. Counsel should provide their instructing solicitor with their anticipated function fees and a draft CLAIM5 showing how they have calculated their fees. If the number of main hearing days, as listed, exceeds ten then the objective is to agree fees that counsel would achieve on detailed ex post facto assessment. Counsel should therefore provide proposed brief and refresher fees and full justification for them including proposed hourly rates and details of work and hours to be undertaken. What if the length of the listed hearing runs over or under? 45. If the main hearings were listed for ten days or less counsel’s fees would have been agreed on the basis of the Family Graduated Fee Scheme. If the hearing then runs into an eleventh day or longer then counsel’s fees can be renegotiated after the event outside of the Family Graduated Fee Scheme on the basis of an ex-post facto assessment. Such an ex-post facto assessment of any counsel’s fees that were incurred in the “Costs to Date” or pre-contract period may result in the need to apply for a retrospective amendment of the costs limitation that applies to costs incurred for this period. 46. If the main hearings were listed for more than ten days counsel’s fees would have been agreed on the basis of an ex-post facto assessment. If the hearing then runs short to ten or less than ten days then counsel has the choice of retaining the payment regime agreed (minus of course relevant refreshers for the unused days) or having their fees renegotiated after the event on the basis of the Family Graduated Fee Scheme. How do you calculate the length of the main hearing? 47. “The main hearing” means the hearing at which the substantive issues are listed to be determined and are considered by the court. In care proceedings this means both the threshold/fact-finding hearing and the welfare/disposal hearing. It does not include the PHR, issues resolution hearing or review hearings. Can the agreed stage price be increased? 48. We will amend the certificate to increase the agreed price for a fully costed stage only where additional work could not reasonably have been foreseen when the Case Plan was agreed and only if the cost of the extra work will exceed 5% of the agreed price for the stage. Minor increases in work will not result in an increase in the stage price, for example, writing some additional letters. Hence the 5% tolerance has been applied. You will have to justify any increase over the original stage price demonstrating that any proposed work was unforeseeable at the time the Case Plan was agreed. By way of example: A. If an additional party is unforeseeably joined in proceedings then the work in reviewing that party’s arguments will not be in the Case Plan at all. The decision on authorising additional work should be straightforward, as the work was clearly not included in the stage price. B. If a solicitor applies for an increase due to writing a large number of letters to the opponents it is unlikely that they will be able to demonstrate the work was not foreseeable and not included in the original stage price. This will most likely not result in an increase in price. C. If an additional hearing is listed that would clearly be unforeseeable and we would agree to amend the Case Plan to include the reasonable costs associated with that. D. If a main hearing overruns that would also clearly be unforeseeable and we would agree to the additional costs on a pro rata basis with the costs already agreed. In any case where additional work arises that you would seek to be included in the Case Plan it is important that an amended Case Plan is sent at the first opportunity. We will not agree to amend a Case Plan retrospectively except where emergency work arose and it was not possible to contact us before the work was carried out but you did so immediately thereafter. Finally, it is not intended that minor increases be aggregated across several activities within a stage to achieve the required 5% minimum increase. It is expected that applications will be made separately for increases in different activities within a stage in the case as they arise. What happens if I need to amend the Case Plan? 49. Once a Case Plan has been agreed there are a number of circumstances when additional work needs to be authorised either because of an unforeseen change to the timetable or because the case had not previously been listed for final hearing. It is intended that the Case Plan be a single evolving document. Each time you need further work authorised you should amend the existing agreed document by updating the case information (the new information either in bold or italics or clearly headed). If the additional work is part of an agreed stage then amend that stage to include the new work (again in bold or italics or some other way of differentiating it from the previously agreed work) and update the stage totals and the costs summary. 50. If the new work represents a further stage (e.g. disposal following threshold) then again ensure the case information is updated and insert a new numbered stage with all the further anticipated work for the new stage and update the costs summary. The “Coststo- Date” details will always remain the same. If you need to submit an amended Case Plan before the existing one is agreed then please make clear in the covering letter that the one you are submitting replaces the earlier one and confirm when the earlier one was submitted. Please see below and the example Case Plan attached. What if I need an urgent change to the agreed Case Plan? 51. If urgent work not covered by the Case Plan is needed a change can be authorised by the Case Manager by an exchange of faxes or e-mails although the Case Plan will need to be amended as soon as possible thereafter. ”What about the effect of the possible variation in hearing length on the price of a full hearing stage?” 52. The Case Plan must be agreed on the basis of the case as timetabled. If subsequently additional hearings are listed these will of course be considered unforeseeable and the Case Plan must be amended to include the associated additional costs for agreement. If a main hearing overruns again this will be considered unforeseeable and the additional costs will be agreed on a pro-rata basis with the costs already agreed. This can be done via an amended Case Plan if the case is continuing or on submission of the final claim for costs following a final hearing. What happens if the case stops part way through a stage? 53. It is possible that the case may be stopped. The client may become financially ineligible for funding or information may become available that shows the client has not made full disclosure about the case. This could lead to discharge or revocation of the client’s certificate, which would lead to automatic termination of the contract. In such circumstances the solicitor will be paid their costs for the proportion of work undertaken in the stage plan. What happens if a Case Plan and fully costed stage cannot be agreed? 54. If an agreement between us cannot be reached as to the price for a fully costed stage, there is a right under the contract for the case to be reviewed by an Independent Funding Adjudicator. However, there is no right of review if the Commission rejects a fully costed stage because it does not contain the required information. What happens if there is a change of solicitor? 55. If the Commission agrees to a change of solicitor during the lifetime of a contract then the incoming firm will have to sign their own contract and either agree to adopt the Case Plan already agreed or complete their own Case Plan for agreement. The outgoing firm will be able to submit a claim for assessment of their costs actually incurred up to determination of their retainer. Assessment will be in accordance with the last agreed Case Plan. If there is a change of solicitor during the initial contract negotiations then both firms will still have to agree their costs and sign High Cost Case Contracts. Where there has been a previous solicitor at the time the first case plan is submitted their costs will form part of the “Costs-to-Date” period and, where they have not already been assessed will be subject to assessment by the Commission as part of the pre-contract costs. ”What happens if we have been acting for more than one client under a contract/Case Plan and they subsequently need separate representation?” 56. In those circumstances your costs up to transfer will be apportioned equally between the relevant certificates but subsequently just in respect of the remaining certificate/s. The incoming firm will have to sign their own High Cost Case Contract and agree their own Case Plan for their costs under their certificate/s. What if the case has finished before the Case Plan has been agreed? 57. Whilst there is no time limit for submission of a Case Plan, early submission is very much encouraged. We will continue to negotiate and agree the case plan if the case concludes before a Case Plan has been agreed. You will still need to sign the high cost case contract before final payment can be made. In some exceptional circumstances, particularly if we have asked you to substantively revise the Case Plan, we may instead suggest that you complete a CLAIM1 as for final payment and that we agree the costs in the CLAIM1 in lieu of a case plan. Once the costs in the CLAIM1 have been agreed again you would still have to sign the high cost case contract before final payment could be made. This approach may also be appropriate if the need for a Case Plan only becomes apparent immediately before final hearing and there is not a reasonable opportunity to complete and submit a Case Plan. However this will only arise in exceptional circumstances and you should contact the unit who would manage the funding for permission to follow this route. What is the “Events” pricing model? 58. This is a pricing model used by the Special Cases Unit devised from historic analysis of bills subject to court assessment. It is currently only used in very high cost complex public law cases involving Queen’s and Junior Counsel or two counsel cases where the number of main hearing days exceeds ten. It is not used for single counsel cases managed by the South Tyneside Unit. 59. This model does not replace any of the relevant costs rules, regulations and provisions but is simply a tool to assist the Commission in ensuring that the costs agreed in Case Plans represents the same level of costs that would be achieved on court assessment. 60. The analysis of court assessed bills enabled us to work up broad average hours, costs and enhancements in all activities and to relate them to a number of specific events. The model defines an event for solicitor as any and all hearing days and for counsel hearing days and substantive client conferences. With the development of court protocols hearing days also now includes advocates meetings. For counsel “substantive client conference” means the main conference with solicitor, counsel and client usually held before main hearings. It does not include telephone conferences, conferences between the legal team in the absence of the client or conferences at court hearings. A broad average price is then allocated to each event. For solicitor this is £1,230 for junior counsel £1,320 and for Queen’s Counsel £2,310. Based on the number of events this then gives a cumulative price for all work under a certificate. 61. Example – Solicitor, throughout the lifetime of a certificate, undertakes five directions hearings, two advocates meetings, one PHR, a seven day fact-finding/threshold hearing and a four day disposal/welfare hearing. Total 19 events at £1,230 per event making £23,370 for all work under the certificate. Junior counsel in the same case undertakes four directions hearings, one advocates meeting, one PHR, the seven day factfinding/ threshold hearing, the four day disposal/welfare hearing and two substantive client conferences. Total 19 events at £1,320 per event making £25,080 for all work under the certificate. In the same case Queen’s Counsel undertakes one PHR and the seven day fact-finding/threshold hearing. Total eight events at £2,310 per event making £18,480 for all work under the certificate. 62. We have been using the pricing model explicitly with counsel for a number of years and most chambers that undertake this type of work regularly are familiar with it. We have not applied it explicitly to solicitors as most firms do not undertake this type of work regularly and often feel more comfortable presenting their Case Plans in the usual format. However we are happy to apply it explicitly for solicitors’ costs and in any event use it as our benchmark/guide to assess the reasonableness of the costs claimed in a Case Plan. What happens if the number of agreed events changes 63. A Case Plan is agreed on the basis of the current known listing. If additional interlocutory hearings are listed then the agreed costs are simply increased by the relevant number times the event price. In respect of main hearings it needs to be recognised that preparation is front loaded and therefore if a main hearing under or overruns the agreed price is adjusted up or down by a refresher rate which for junior counsel is £800 for Queen’s Counsel is £1,500 and for Solicitor is £500. 64. Example – taking the example in paragraph 51 above let us say there were two additional review hearings listed and the fact-finding hearing overran by three days but the disposal hearing underran by two days. For solicitor the effect is an additional two events at £1,230 each plus three over run refreshers at £500 each minus two under run refreshers at £500 each making a net result of an additional £2,960 which with the previously agreed £23,370 makes an amended total of £26,330. For junior counsel the effect is an additional two events at £1,320 each plus three overrun refreshers at £800 minus two underrun refreshers of £800 each making a net result of an additional £3,440 which with the previously agreed £25,080 makes an amended total of £28,520. For Queen’s Counsel the effect is three overrun refreshers at £1,500 making a net result of an additional £4,500, which with the previously agreed £18,480 makes an amended total of £22,980. 65. Solicitor advocates – Where we have or would have granted authority to instruct Queen’s and Junior Counsel but the solicitor takes on the role of the second advocate (having undertaken all the advocacy to date) the event price for such a solicitor advocate is £2,000 whilst Queen’s Counsel remains at £2,310. The refresher rate for solicitor advocate in these circumstances would be £1,250. 66. Experienced leading junior counsel – Where we have or would have granted authority to instruct Queen’s and Junior Counsel but the lead counsel role is undertaken by an experienced junior the event price for such a leading junior would be £1,850 and the refresher rate would be £1,150 Do I have to agree my costs on the basis of the events model? 67. No. You can present your case as described earlier in this guidance on the basis of individual activities showing relevant prescribed rates, anticipated hours, suggested enhancement and total costs for each such activity. The Commission will assess your costs in accordance with the benchmarks that the events pricing model provides and only challenge your costs if they exceed these benchmarks but this will be by reference to any individual aspect of the suggested costs, such as hours, rates and enhancements that we consider inappropriate. The simplicity of costing cases based on the events pricing model has proved very attractive to solicitors who struggle with detailed preparation of anticipated costs. There may also be some exceptionally unusual cases where the Commission may decide that applying the events pricing model may result in significantly inflated costs and would therefore agree costs on the basis of activities, hours, prescribed rates and enhancement. PAYMENT UNDER THE CONTRACT When are the payment points? 68. You can submit a claim for full payment of solicitors costs and counsel’s fees (CLAIM1) or payment on account (CLAIM4) for pre-contract costs as soon as the contract is in place and thereafter at the end of each completed stage. If a stage lasts more than six months you may make a claim for a payment on account after each six-month period. You may make a claim for a payment on account of disbursements at any time. If, because of the circumstances of the case, you are unable to submit a CLAIM1 for the pre-contract period when the contract is agreed you may in the alternative submit a request for a payment on account on form CLAIM4. What about Counsel? 69. Where counsel’s fees have been agreed in accordance with the Family Graduated Fee Scheme, final payment can be made directly to counsel on receipt of a CLAIM5. In such cases solicitor must still ensure full details of the fees paid to counsel are included in their CLAIM1. For cases where counsel’s fees have been agreed outside of the Family Graduated Fee Scheme, final payment to counsel is made via the solicitor on a CLAIM1 in accordance with the above payment points. Counsel can apply direct to whichever unit is managing the Case Plan/Contract for a payment on account on form CLAIM4. How and where do I claim for payments on account? 70. Payments on account are made on form CLAIM4. These should be sent to whichever unit is managing your Case Plan/High Cost Case Contract clearly marked ‘Family VHCC Case’. Requests for disbursements in excess of £100 can be sent at any time and will be paid in full if there is sufficient cover in the current costs limitation or agreed Case Plan. In respect of profit costs and counsel’s fees these can be claimed in accordance with the above payment points and are paid up to 75% of the costs incurred to date again assuming there is enough cover in the current costs limitation or agreed Case Plan. What if the Case Plan has not yet been agreed? Can I still make a claim? We will normally only make payments up to the level of the current costs limitation or agreed Case Plan. If payments have been made up to the costs limit and the Case Plan is still being negotiated then we can still make payment on account of urgent disbursements as long as the cost of those disbursements is not in dispute. Sometimes profit costs have been agreed but negotiations may still be ongoing in respect of counsel’s fees or vice versa. In those circumstances we may agree to make payment on account in respect of the agreed element (up to 75%) pending resolution of the remainder of the Case Plan. Can I send you a bill of costs as for detailed assessment. 71. Because all costs under a High Cost Case Contract are assessed by the Commission we discourage costs draftsmen’s fees for drawing up Bills of Costs and will not agree these unless we have specifically asked for such a bill. In the majority of cases a CLAIM1 should be completed with full details of the costs claimed on multiple page 4s and 7s. Some firms may choose at their own expense to have detailed bills prepared and we will accept these with a CLAIM1. Can we send you our time recording sheets? 72. It has been our experience over recent years that in family cases more often than not a firms time recording sheets are not suitable as a replacement for the detailed information contained in a CLAIM1. Invariably there have been problems with not being able to identify how rates and enhancement has been applied and the layout is often confused. If you would like us to consider accepting time recording data in lieu of a full completed CLAIM1 then please contact us in advance with examples of the data you can produce so that we can agree this in advance. Otherwise we now insist on a fully completed CLAIM1. What should I send with the CLAIM1? 73. With the CLAIM1 you should send counsel’s fee sheets and disbursement vouchers for items over £500. You need not send the file of papers initially but we reserve the right to call for this if we deem it necessary. What if there is an order for costs against the other side? 74. This is less likely to be relevant in public law cases but does arise in private law cases. If the client has a financial interest in the costs order because of the operation of the statutory charge then you can consider applying for the scope of the certificate to be amended to include enforcement proceedings subject to the appropriate funding criteria and if granted the Case Plan would be amended to include this further stage of costs. If the client has no financial interest or the client decides not to pursue the costs order themselves then you report the costs order to the Commission. Usually this is done by completing the relevant section in a CLAIM1 and attaching a copy of the order. The Commission will then deal with recovery of these costs. 75. Only the court can determine the amount in a costs order so a bill of costs will have to be drawn up for that part of the proceedings covered by the costs order. 76. If partial costs are recovered any remaining legal aid costs can still be claimed from the Commission subject to assessment in accordance with the agreed Case Plan. 77. If the client has no financial interest in the costs order the Commission will decide whether to pursue the order and if we do successfully recover costs at market rates the instructed solicitor will be paid the difference between the costs agreed in the Case Plan and the recovered costs at market rates. High Cost Case Unit Contact Details South Tyneside Family VHCC Unit Legal Services Commission South Tyneside North Region Office & Business Delivery Centre Berkley Way Viking Business Park Jarrow NE31 1SF DX 742 350 Jarrow 2 VHCC enquiry line: 0191 428 3600 (choose option 4) e- mail: vhccstyneside@legalservices.gov.uk Cardiff Family VHCC Unit Legal Services Commission 4th Floor Marland House Central Square Cardiff CF10 1PF DX 33006 Cardiff London Family VHCC Unit Legal Services Commission Exchange Tower 2 Harbour Exchange Square London E14 9GE DX 100170 Docklands 2