Challenging the Litigators Graduated Fee PPE cap - an update
On 17 and 18 July 2018, a Divisional Court comprising Lord Justice Leggatt and Mrs Justice Carr DBE heard the Law Society’s judicial review challenge to last October’s decision to make a 40% cut to the maximum number of pages of prosecution evidence (‘PPE’) that count for payment under the Litigators Graduated Fee Scheme (‘LGFS’). In practical terms, the cut means that a huge amount of work on the most complex Crown Court cases is presently unremunerated: fees are up to 37% lower, but the Legal Aid Agency expects precisely the same amount of work to be done. This is the first occasion in which a cut of this kind has been made to Criminal Legal Aid.
Represented by Dinah Rose QC and Jason Pobjoy of Blackstone Chambers along with Bindmans LLP and its in-house lawyers, the Law Society argued the cut decision was procedurally unfair, irrational, a breach of the fundamental right of access to justice and an unlawful frustration of solicitors’ legitimate expectations there would be a ‘review’ of market sustainability before any further cuts were made. Judgment was reserved by the Court, as was its decision on whether to admit independent expert econometric evidence the Law Society had commissioned from Oxford University’s Professor Abigail Adams. This concerned the reliability of a Legal Aid Agency analysis of costs trends said to have answered the 'crucial question' of whether the cost judge’s decision in R v Napper had caused a 'substantial' increase in LGFS costs from September 2014. The Law Society contended that, not only was the fact of this analysis and information about it unfairly withheld until the judicial review had begun (depriving the Law Society and other consultees of the opportunity to comment before the cut decision), but substantive errors had been made, such as omitting trial length and number of defendants from key calculations and failing to account for cost trends that pre-dated Napper.
Lord Justice Leggatt closed the hearing by saying that he and Mrs Justice Carr appreciated the importance of the case and both parties’ need for an answer as soon as possible. That answer is most likely to come in September or October, almost a full year after the cut. In the meantime, it is strongly recommended that Criminal Legal Aid firms keep comprehensive and accurate records of actual PPE numbers in all cases affected by the cut as, if the regulations introducing it are quashed, retrospective claims for the old-pre cut fees are likely to be possible. It is also advisable for solicitors to record the time and costs involved in pursuing special preparation reading and viewing time claims made for PPE in excess of 6000 pages as there may be means of recovering these costs too.
The Law Society remains willing to engage constructively with the Lord Chancellor on reforming the LGFS in a way that does not compromise access to justice or imperil the viability of solicitors firms that provide this vital public service. Clear, principled proposals to that end were made back in March 2016.