APPENDIX 3
Memorandum submitted by J Christopher
Napier, Master (Taxing Office), Supreme Court of Judicature of
Northern Ireland
GENERALLY
1.1 It is important in all aspects of legal
aid reform to bear in mind that the Northern Ireland context of
legal services is not and has never been similar to that in England
and Wales, that:
— legal aid services in Northern Ireland
were not introduced until 1965, as compared to 1949 in England
and Wales. For 16 years this valuable welfare service was not
available to the citizens in Northern Ireland;
— in Northern Ireland a 5 per cent
deduction from solicitors and barristers' remuneration is retained
by the Legal Aid Department in all High Court civil cases while
a similar percentage deduction was abolished long ago in England
and Wales.
1.2 A slow rather than a rapid change is
justified in these circumstances and local considerations require
a Northern Ireland solution to a Northern Ireland problem and
step-by-step shadowing of legislation in England and Wales is
not appropriate without the necessary modifications.
PART I
ADMINISTRATIVE ARRANGEMENTS
2.1 The main thrust of the administrative
arrangements in the Command paper is to introduce a new Legal
Services Commission for Northern Ireland, a move with which I
entirely agree and which I supported in my Response to the Consultation
paper "Public Benefit and the Public Purse".
PART II
BUDGETARY CONTROL
3.1 While I understand completely the need
for the budgetary controls sought, I have difficulty with some
aspects of the proposals. I have long supported the idea of a
wide range of fixed as well as standard fees being available in
both civil, family and criminal matters for both solicitors and
barristers.
3.2 I see as part of the problem with the
existing service the fact that once legal aid is obtained, there
is at the moment no curb of proportionality. As Mr Justice Girvan
said in a recent judgment.[2]
A further principle requires to be stated. It
is easy perhaps with the benefit of hindsight to conclude that
certain steps taken were not in the event required. That approach
must not be taken. Rather the person coming to the file after
the event should adopt the view that a solicitor faced with the
preparation of his or her client's case will by necessity need
to examine every proper avenue of enquiry to protect and enhance
his client's interest. It would be inappropriate to second-guess
the decisions made in such circumstances save those that any reasonable
person would have seen as not justifiable.
In other words the test of proportionality,
comparison with the preparation times of the solicitors or counsel
in similar cases, should not be applied under the existing law,
at least in civil cases. This often gives rise to the preparation
of cases in a manner which provides a Rolls-Royce service where
a Ford Popular service would reasonably suffice.
3.3 In my response to the Consultation Paper[3]
I tried to deal with the reasons which I see as being behind the
expansion of the Legal Aid budget at the moment. The best solution
to the problem of budgetary control is to my mind that set out
by me in my response at Page 16 thereof. It is based on the controls
in force in the world of insurance.
Budgetary control is not limited to the introduction
of scales of costs. Care must be taken not to confuse the two
types of scales of costs which I have discussed in the response,
namely roundabouts-and-swings scales and standard, fixed or measured
scales of costs.
The introduction of scales of standard costs,
either in civil or criminal legal aid cases, will not eliminate
the problem of budgetary control. It is neither fair, reasonable
nor just to have a stringent type of standard scale, verging on
a swings-and-roundabouts type of scale, with exceptionality as
set out in paras 64-66 of the Command Paper.
These are two conflicting principles, either
(a) roundabouts and swings scales of costs or (b) standard scales
of costs, with the right to opt, in exceptional cases, for fees
to be assessed in the individual case.
In roundabouts and swings scales the practitioner
takes the rough with the smooth, conscious that in some cases
he will receive more than he ought strictly to receive, and that
in others, to compensate, as it were, he will receive less. All-in-all,
over a period of time, fair remuneration will be received, but
in any individual case that is unlikely to be the case. An example
of these is the County Court scale of costs.
Standard fees ought to be cast so as to effect,
as far as possible, fair remuneration in the broad run of cases,
and it is for the practitioner to ask for non-standard assessment
if the practitioner feels that the case is outside the broad run
of such cases. If the criteria for exceptionality are too high,
one is faced with the equivalent of the roundabouts-and-swings
scales, where, to succeed, the level of remuneration must be cast
similar to the present County Court scales.
To my mind, to create such a scale for run-of-the-mill
High Court damages litigation would, were one to use the criteria
on which the County Court scales were set, create an increase
in the annual expenditure for Legal Aid, in place of any reduction.
Albeit, that increased expenditure would be controlled.
The present County Court scales only work because
they are highly remunerative for the legal profession in the majority
of cases, and yet, because of the size of the individual case
claims for costs and the small number of cases were the profession
runs at a loss, the overall budget for the Legal Aid Fund in this
regard is acceptable.
The legal profession is pleased with the general
performance of the County Court scales of costs. Were this scale
to be expanded into the High Court area, while the profession
might be well-pleased, the taxpayer might well have reason to
complain that the lawyers were being excessively remunerated!
In standard fees cases there are of necessity
some smaller cases where the remuneration is more than generous.
An example of standard costs scales is the present standard costs
in criminal matters.
It is important to bear in mind the difference
between these two kinds of scales of costs. I feel that the authors
of the Consultation Paper "Public Benefit and the Public
Purse" failed to grasp this distinction.
In the area of exceptional cases it is to be
left to the Taxing Master to decide the level of fair remuneration,
with, presumably appeal by review by a judge. Clarification will
be required, as I mentioned earlier, in the area of proportionality.
Fixed costs are like standard costs, creating
a generally acceptable overall fair level of remuneration, but
not necessarily fair remuneration in any particular case. Wider
use of fixed costs in matrimonial causes is not only justifiable
but would produce immediate savings in costs and administrative
time—see my memorandum to the Legal Aid Advisory Committee
dated 30 May 1990.[4]
Measured Costs do not receive mention in the
Command Paper yet have in my opinion, a valuable part to play
in the proper management of legal aid. This is the system by which
the judge at the conclusion of routine cases in making an order
for costs will indicate the sum of costs which s/he feels appropriate
and only if the practitioner is unwilling to accept the sum will
order a taxation of the costs.
CASE MANAGEMENT
3.4 The Government proposes to introduce
the Funding Code. It will require skill to ensure that both the
merits of applications and the timescale within which they are
progressed are managed efficiently. My proposals for shadowing
the manner in which such cases are managed in the insurance industry
might be of assistance.
A time-related withdrawal of assistance in cases
not progressed with sufficient expedition might be appropriate.
SALARIED LAWYERS
3.5 The engagement of salaried lawyers in
both civil and criminal cases is worth considering as suggested
by the Paper. How do the Government propose to deal with same?
Have they considered the cost implications or the extent to which
a salaried defender or other salaried public lawyer might be used?
In a small jurisdiction like Northern Ireland I would doubt if
such employment would be cost-effective.
However, in the peculiar circumstances of Northern
Ireland consideration has to be given to the questions of fairness
and absence of bias, given the small pool of lawyers and litigants
here, and the divided society in which we live.
The steps to introduce such lawyers in criminal
cases as salaried defenders in England and Wales is presently
under consideration, and the Northern Ireland Legal Aid Advisory
Committee—of which I am a member—has addressed its
concerns on the matter to the consultants in England and Wales.
OTHER POWERS
3.6 The whole area of Conditional Fee Agreements
(CFAs) and Contingency Legal Aid Fund (CLAFs) is fraught with
doubt and misunderstandings. One has only to refer to the two
articles, printed side by side, in The Times of 20 January 2001,
to see the potential for confusion as Edward Garnier, MP, Shadow
Attorney General and David Lock, MP, Parliamentary Secretary in
the Lord Chancellor's Department, compete for votes on the reform
of the legal aid code.
Widespread doubt was cast on CFAs in Northern
Ireland by all respondents to the Consultation Paper—paragraph
33 of the Command Paper.
One must await the outcome of the committee
recently appointed to report to the Lord Chancellor on the feasibility
of CLAFs in Northern Ireland, but I feel that Northern Ireland
is too small an area for CLAFs to be other than legal aid by the
back door, with an ever increasing budget required to balance
its books.
CRIMINAL LEGAL
AID
3.7 In the area of criminal legal aid, the
absence of a financial test does give rise to some criticism.
Once legal aid has been granted by the judge or magistrate in
court,[5]
there is no mechanism to curtail it in any way, even though either
the means or the merits of the defendant may have changed.
Recovery of Defence Costs Orders are to my mind
of limited value only, and are too inflexible to be efficient
in the regulation of criminal legal aid and in the public confidence
in the fairness thereof.
3.8 I have long advocated a system whereby
arrangements for the conditional grant of legal aid should be
comparable in criminal cases to the emergency grant of legal aid
in civil cases. While the 1981 Order is silent on the issue of
emergency civil legal aid certificates, power is given by Regulation
11 of the 1965 General Regulations for the issue of same in civil
cases.
3.9 The application form for such an emergency
certificate contains an undertaking by the applicant to reimburse
the Legal Aid Department of the Law Society of Northern Ireland
for all monies paid by them to the lawyers involved in the event
of a full certificate being refused on financial or other grounds,
although there appears to be no statutory authority for the Law
Society demanding such an undertaking.
3.10 Practitioners whose clients obtain
an emergency civil legal aid certificate are remunerated out of
the Legal Aid fund for any work done on foot of the emergency
certificate and during its currency. It is for the Legal Aid Department
to seek reimbursement in the event of a full legal aid certificate
not being issued on financial grounds, or for any other valid
reason. This sum is recovered by the Legal Aid Department as a
civil debt.
3.11 I foresee that an analogous system
might easily and economically be introduced into the criminal
legal aid system by the introduction of general regulations to
govern criminal legal aid similar to the 1965 General Regulations
governing civil legal aid. Regulation 41 of the Legal Aid in Criminal
and Care Proceedings (General) Regulations 1989 shows that such
a system appears to work well in the neighbouring jurisdiction.
3.12 I feel that this opportunity to bring
such an interim stage into the criminal legal aid certification
process would not only be in the interests of justice and the
access thereto of persons charged before the criminal courts,
but also give rise to saving considerable funds to the Legal Aid
Department in respect of those defendants who, while apparently
wealthy, can show superficially that they are indigent. Public
confidence in the fairness of the scheme would be strengthened.
3.13 I am a little concerned that none of
the proposals suggested by the Legal Aid Advisory Committee[6]
annexed as Appendix 12 to their Report to the Lord Chancellor
on the Legal Aid Annual Report for 1994-95 (Cmn 470) has yet been
considered in spite of the obvious savings in time and money which
they will bring into the existing system.
PART III
QUALITY
4.1 Legal aid services as a welfare benefit
at the public expense are required to be of a high and consistent
quality. For too long the system of legal aid in Northern Ireland
was administered without any regard to either standards of quality
or avoidance of fraud. These matters require to be taken in hand
as soon as possible.
There ought to be some effort made by the Legal
Aid Department, or new Legal Services Commission, to investigate
and report on the level of public or private belief in the alleged
lack of quality of the delivery of legal aid services by the legal
profession in Northern Ireland.
FRAUD
4.2 The elimination of fraud is the responsibility
of the Legal Aid Department or the new Legal Services Commission
and the present computer programmes of the Legal Aid Department
will hopefully go a long way towards the identification and elimination
of any existing fraudulent use of the Green Form Scheme or other
abuses of the legal aid scheme in general. The absence of any
statistical information leaves one dependent on anecdotal information,
which cannot be reliable. Furthermore, there is unease generally
with the monitoring of the issue of criminal legal aid certificates
and the information on which these are granted by the courts.
PROPORTIONALITY
4.3 As the Master taxing or certifying costs
in Northern Ireland for over ten years now I am conscious, in
an anecdotal way, of the increase in preparation times claimed
for the defence of criminals since the introduction of the Criminal
Costs Rules on 1 January 1993. Likewise I have seen a huge growth
in the hours preparation claimed in relation to the civil claims
since the present Rules of Court were introduced in 1988.
This may reflect a general slowing in average
reading speeds, or a less careful recording of preparation times,
a less urgent approach to the task or indeed, an overall increase
in the perceived reasonable and necessary preparation of each
case.
Against this background the failure of the judges
on appeals from the Taxing Master to support the idea that there
is a rate for the job, a hypothetical reasonable length of time,
as extracted from other taxed cases, which the hypothetical average
solicitor might reasonably spend in the preparation of any case
of that particular type seems to me to mean that legislation must
define the proportionality applicable to the costs to be incurred
in each kind of case.
PART IV
THE SOLUTION SUGGESTED BY THE MASTER
5.1 The following solution is neither a
take-it-or-leave-it solution nor, probably, the last word on the
modification of the present situation in the circumstances. I
would be happy to discuss variations or modifications thereof
with those responsible in due course.
The drawback with many scales of costs is the
work involved by the need to update them regularly.
IMMEDIATELY
5.2 The move to the establishment of the
Northern Ireland Legal Service Commission (LSC) to proceed apace.
The transfer of functions to take place as soon as possible.
The proposed three budgets to be established
within the Legal Aid Department, one for civil non-family, one
for civil family and the third for criminal legal aid. The Legal
Aid Department should work now on the basis of demand but monitor
costs on the basis set out in the Command Paper so that analysis
will be available to the new LSC when established.
The legal aid legislation to be amended to introduce
the concept of proportionality in all cases where legal assistance
of any kind is involved.
The concept of civil legal aid certificates,
limited to a specific amount of costs and outlays (which must
not be exceeded without authority from the Legal Aid Department/LSC),
to be introduced gradually in place of the system of limited certificates
presently in use. This is of particular relevance in relation
to clinical negligence and other high-cost cases.
The legal aid legislation to be amended to provide
for greater facility for non-assisted successful litigants to
have an order for costs against the Legal Aid Fund. The existing
5 per cent retention in High Court costs to be retained against
this liability.
The fixed costs provided in Rule 9 of the Matrimonial
Causes (Costs) Rules (Northern Ireland) 1981[7]
(as amended by the Matrimonial Causes (Costs) (Amendment) Rules
(Northern Ireland) 1989[8])
to be amended immediately to provide a fair average figure for
solicitors' costs and counsel's fees. (My staff can quickly extract
the relevant figures from taxed bills of costs to provide an attractive
and fair figure which will result in immediate savings of costs
and time for the Legal Aid Department.)
The immediate implementation of the preferred
option, Option One, of Appendix 12 referred to above[9]
in relation to criminal legal aid. This will replace the existing
Appropriate Authority by the Legal Aid Department and the LSC,
reduce the number of appeals etc.
The immediate introduction of a system of emergency
criminal legal aid certificates, followed by full certificates
where necessary, with the right of the Legal Aid Department or
LSC or the judge to discharge or revoke the same just as a civil
certificate can be discharged or revoked for good reason.
LONGER TERM—2
TO 4 YEARS
5.3 In civil family cases, the development
of scales of costs for ancillary relief cases, based on the value
of the assets effectively transferred from one party to the other.
These scales should not reflect complexity, rather the actual
value of the assets, the transfer of which is achieved. This will
act as an incentive to early and reasonable settlement in small
cases and the restriction of excessive adjournments—(presently
at a disgraceful level, in my opinion)—the prompt access
to discoverable documents and the avoidance of lengthy and unproductive
applications and hearings. This scale should be a roundabouts-and-swings
scale with no access to taxation unless the master/judge, at the
conclusion of the hearing of the matter, shall so certify.
The development of scales of costs, (small,
medium and large), in Children's Order cases, including child
abduction cases, based on a standard fee which is the average
cost of preparation relative to the sort of issues (sexual abuse,
physical abuse, freedom for adoption, return to country of origin
etc) and should specify the size of papers which takes the case
outside of the standard category. The actual category will always
be the first (small) category save where the master/judge at the
trial certifies that the case is medium or large. This certification
will depend on the actual number of documents required to be considered
and the length of any trial.
In civil non-family cases, the development of
a scale of costs, different entirely from the Belfast Solicitors'
Association (BSA) scale, where, based on the possible different
points of settlement, or conclusion of the case, as in the present
BSA scale, and modelled on the present County Court scales with
appropriate adjustments in quantum, the value of the money recovered
and the nature of the case (personal injury, debt, possession
of property, dissolution of partnership, etc), average remuneration
for the basic preparation of the case and the actual hearing (first
day) would be included. A further scale would provide for a fixed
fee for interlocutory applications of various kinds, half and
full day refreshers for solicitors and counsel. This scale should
be a roundabouts-and-swings scale with no access to taxation unless
the master/judge, at the conclusion of the hearing of the matter,
shall so certify.
Clinical negligence and other specified
high-cost cases to be governed by special civil legal aid certificates
which limit the amount of remuneration to a specific sum for costs
and outlays without further authorization, so that the conduct
of the case and the funding thereof can be monitored regularly.
[In practice there are very few such cases of any value each year].
In no civil case should the parties be competent
to decide or agree as part of the terms of an order into which
category, small, medium or large, the case shall fall for legal
aid purposes.
In criminal cases, a scale of standard
costs relating to Crown Court cases of various categories,
as for example, the categories of cases currently in use by the
Legal Aid Department:—
| 1A | Murder
|
| 1B | Conspiracy to Murder |
| Attempted Murder |
| 2A | Manslaughter |
| 2B | Complex fraud |
| 3 | Certain Firearms and Explosives Offences
|
| Kidnapping |
| Robbery |
| Theft |
| Burglary |
| Rape |
| Serious Sexual Offences |
| Blackmail |
| Arson |
| Escape from Custody |
| Offences Against the Person Act
|
| Others with max penalty of 10+ years
|
| 4 | Criminal Damage |
| Killing by car |
| False Imprisonment |
| Highjacking |
| Other Arms and Explosive charges
|
| 5 | All others |
A similar scale should be developed to cover cases pleaded
and cases fought in the Magistrates' Courts and for County
Court appeals.
These scales would have variations for pleas and
fights (first day), for small, medium and large depositions/discovered
papers with another scale for interlocutory applications and adjournments,
arraignments, and half- and full-day refreshers for solicitors
and counsel.
The standard fee is the average costs of preparation relative
to the sort of charge and should specify the size of depositions
which takes the case outside of the relevant category. These can
be averaged from actual cases dealt with by the Legal Aid Department/LSC
in the interval. The actual category will always be the first
(small) category save where the judge at the trial certifies that
the case is medium or large.
This certification will to some degree depend on the actual
number of documents required to be considered.
The size of the brief prepared by the solicitors should no
longer be a measure of the size of the case, as the tendency has
developed to deliver massive briefs to counsel which, instead
of summarising the issues for Counsel, in fact expand all the
aspects of the case to justify huge preparation times.
Recovery of Defence Cost Orders can be introduced if still
thought effective.
Criminal appeals likewise would be covered by a sliding scale
covering the same factors as the Crown Court scales. The guiding
factors here are the nature of the charges, whether appeal is
against sentence or against conviction and sentence, the size
of the Crown Court transcript and the issue of new evidence, if
appropriate.
These scales should be a roundabouts-and-swings scale, with
no access to taxation unless the judge/Court of Appeal, at the
conclusion of the hearing of the matter, shall so certify.
The right of appeal from the order of the judge on the matter
of costs and which category of costs shall apply to be appealed
in the same manner as any interlocutory order of the judge.
LONG TERM
5.4 The modification of the scales above to reflect fair
remuneration in the light of experience and of the appeals therefrom.
The establishment of CLAFs, (if appropriate), the setting
up of salaried lawyers, civil and criminal (if the market still
requires), the monitoring of all firms of solicitors and all barristers
registered with the LSC as to quality of service, the eradication
of fraud by the use of a properly programmed computer to cross-reference
all welfare benefits and applications, all previous applications
for assistance, and all multiple applications.[10]
5 February 2001
2
In the civil legally aided matrimonial cases of Galway-v-Galway:
Carse-v-Carse where he delivered a written (unreported) judgment
on 14 December 2000 on the claims of solicitors and counsel appealing
my decisions on their costs. Back
3
See the list of unprinted papers, p. xvi. Back
4
Not reported. Back
5
Unlike England and Wales, where the court clerk, as a qualified
lawyer, is responsible for the grant or refusal of legal aid. Back
6
I was the author of this Appendix. Back
7
SRNI 1981 No. 196. Back
8
SRNI 1989 No. 217. Back
9
See para 3.13 above. Back
10
As for example, where a solicitor knocks every door in a street
where there has been an event, to collect instructions to claim
for each householder. Back
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