TOP UP FEES – SHOULD A LEGALLY AIDED CLIENT BE ALLOWED TO PAY TOP UP FEES IN APPROPRIATE CIRCUMSTANCES?

Written 7th April 2013 by Olliers Solicitors

Cuts to funding mean that the Criminal Legal Aid spend is below 2002/3 levels – and yet the Ministry of Justice is consulting on price competition in an attempt to further reduce costs.

Top Up Fees

One solution to the difficulties faced by the profession might be to consider the concept of “top up fees” whereby a client receiving Legal Aid could pay an additional fee in appropriate circumstances. This would involve an amendment to the general crime contract rules which currently prevent private funding in respect of clients receiving legal aid. On 5th April 2013, the Law Society issued a consultation document “Procuring Criminal Defence Services: Is There a Better Way?” which asks the profession whether top up fees might be the way forward.

The consultation gives three examples of circumstances where a top up fee might be payable:

  • The services of a more senior fee earner (for example, a Partner)
  • More frequent visits whilst in custody to discuss / prepare evidence
  • Solicitor attendance at procedures not covered by the scope of Legal Aid

It asks what additional examples might apply and the following appear relevant;

  • Defendant wanting his local solicitor to travel to a distant court
  • Defendant requesting numerous conferences with solicitors/counsel
  • Defendant requiring extra visits whilst in custody (possibly at a distant prison)
  • Defendant wanting Leading Counsel where Legal Aid cannot be extended
  • Second junior counsel where legal aid cannot be extended
  • Defendant requiring excessive attention because of language difficulties
  • Defendant insisting his case be prepared by a senior partner
  • Disproportionate amounts of unused material
  • Disproportionate amount of defence enquiries
  • Overseas defence enquiries

Appropriate Circumstances

The above are only examples and there need not be an exhaustive list. Put simply, if the solicitor can show circumstances are appropriate then arguably an arrangement could be made and a note made on the file and an additional payment made.

Five or ten years ago a suggestion such as top up fees would have been controversial and yet within the context of the National Health Service it has long been accepted that medical or dental treatment can be “topped up” with patients mixing and matching their treatment with a combination of National Health Service and privately paid treatment, often in relation to the same condition.

Perhaps now is the time for a similar amount of flexibility to be introduced to Legal Aid.

The Law Society Consultation: Procuring Criminal Defence Services: Is There a Better Way?

Matthew Claughton

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