Claiming Fixed Fees from the LAA when a Default Costs Certificate has been obtained
A number of people in the firm have noted conflicting guidance from various departments of the Legal Aid Agency in relation to the assessment process in fixed fee cases where a Default Costs Certificate has been obtained.
When non-fixed costs orders are made in legally aided matters otherwise subject to a fixed fee, the process for claiming payment should be as follows:-
1) Draft a 6 column bill and serve it on the paying party
2) If, after 21 days, payment or Points of Dispute have not been received and do not appear to be forthcoming, obtain a Default Costs Certificate
3) Attempt to recover those costs from the paying party
4) If the costs cannot be recovered from the paying party convert the bill into a fixed fee CLAIM1A and submit to the Legal Aid Agency
On more than one occasion the Legal Aid Agency has rejected CLAIM1As that were submitted after the above process was followed. Furthermore, a number of people in the civil reject fix team upheld the rejections as correct, stating that the claim must be assessed by the Court and an EX80A obtained showing the fixed costs to be claimed. We believe this to be incorrect for the following reasons:-
1) The inter partes costs have been resolved through the Default Costs Certificate procedure therefore cannot be assessed by the Court
2) The legal aid costs cannot be assessed by the Court as 14.1 -14.2 and 14.13 Cost Assessment Guidance 2013 states that fixed fees are not considered assessable and therefore a fixed fee case will not be subject to court assessment regardless of the value of the claim
3) As the Courts cannot assess the costs they are unlikely to be willing to authorise an EX80A showing fixed costs.
In a large number of cases, the proposed approach would result in assessment fees exceeding the actual fixed fee claimed. Our query was eventually escalated to the Policy & Guidance team when it was confirmed that after a Default Costs Certificate has been obtained we are simply left with the issue of Legal Aid costs. These are to be assessed by the relevant authority subject to the usual limitations, i.e. fixed fees must be dealt with by the Legal Aid Agency. The Policy & Guidance team stated that “the underlying principle of how to deal with legal aid costs after the default certificate has been obtained has remained the same since the days of the old Civil Bills Assessment Manual, long before the family fixed fee schemes”.
Unfortunately, the current version of the Legal Aid Agency’s Electronic Handbook (January 2014) does not accurately reflect the policy, therefore this issue may continuously crop up and should be challenged.