When looking to maximise Legal Aid costs it is essential that your costs are not reduced as a result of the costs limitation.
Costs limitations specify the maximum costs that can be incurred under a public funding certificate. The costs limitation includes solicitors’ charges (including the costs of preparing the bill), Counsel’s fees and disbursements (Costs Assessment Guidance 11.1). It does not include VAT or the costs of detailed assessment (CAG 11.6).
Costs limitations apply to the certificate as a whole and operate retrospectively. Therefore it is only the limitation on the final version of the certificate that is relevant for assessment (CAG 11.2). Where multiple aspects are on the same certificate the limitations are not cumulative. Therefore it is the highest limitation on a certificate that must cover all work done under the certificate (CAG 11.15)
It is possible to extend the same after a case has concluded (CAG 11.18) as long as the certificate is still live. However this will only be considered in exceptional circumstances; and are more likely to be granted in circumstances out of the fee earner’s control e.g if a final hearing lasts longer than expected.
Claims for costs to be assessed by the Legal Services Commission may be submitted in excess of the limitation, on the basis that the work may be assessed down; however the final amount allowed will not exceed the limitation (CAG 11.4).
CAG 11.9 provides that the monitoring of costs is the responsibility of the conducting fee earner. So what should you be aware of?
If the case is particularly complex or unusual, fee earners should bear in mind that an enhancement may be claimable on the solicitors’ fees and, as such, the work in progress ledger is likely to represent an undervaluation of the true level of work that has been done
The limitation must cover the cost to the fund therefore if you are claiming a fixed fee it must cover the fixed fee rather than the actual work done. As a result this is another reason why the work in progress figure may not be an accurate reflection of the position, particularly early on in such a case while the actual profit costs are lower than the fixed fee.
Remember to take account of all disbursements and Counsel’s fees incurred and due to be incurred.