Examination of Witnesses (Questions 60-63)
MARK HENDERSON,
VICKY GUEDALLA
AND ALISON
STANLEY
9 FEBRUARY 2005
Q60 Chairman: The reason for a retrospective
judgment is, by definition, different.
Vicky Guedalla: There are mechanisms
at the moment if one's costs are cut back—
Q61 Chairman: It is reflecting on the
integrity of the practitioner.
Vicky Guedalla: Yes, it is.
Q62 Chairman: It is really something
analogous to or indeed the same as the mechanisms which exist
in other areas of practice, in that without it there is the risk
both of severe unfairness to a particular practitioner and inconsistency
of decision-making.
Mark Henderson: There must be
a mechanism and I think the president of the AIT in his evidence
to this Committee accepts that it should not simply go back to
the same body that has already made the decision, and I think
he suggests that the High Court in some form is really the only
other feasible body, because under the DCA's proposals you are
actually looking at the overall merits of the asylum case, of
the litigation, rather than simply whether six hours was a reasonable
amount of time to spend on a witness statement, which again brings
us back to the point that these hastily cobbled together procedures
really are turning out to be a sledgehammer to crack an increasingly
small nut.
Alison Stanley: If it would help,
the Society can give you a very brief note on the current costs
system and the method of appeal on it.
Chairman: I think, perhaps more pertinently,
whether the present costs system could be available for dealing
with this or whether something more elaborate is needed. Mr Bottomley.
Q63 Peter Bottomley: Can I come back
to this risk premium business again? If we take, for example,
the Refugee Legal Centre, which are recognised as being pretty
good at what they do, if they have a 70% success rate, and on
the pretty broad assumption that cases are equal—which you
say is average—my calculation is that they need to have
about a 43% risk premium to be able to meet all their costs; if
you divide 30 by 70 it comes to 42.8%. How on earth can we expect
people to go for a success rate significantly higher than 70%
unless we are asking people outside the government-funded legal
system to make a loss?
Vicky Guedalla: You cannot, and
may I say in answer to you, before we get on to calculating what
the risk premium ought to be, we need to look at the risk premium
on top of what? At the moment publicly-funded applications to
the High Court are remunerated under legal aid certificates which
pay a basic hourly rate of £79 for London practitioners,
on top of which you can be awarded enhancements of up to, in theory,
100% or more for particularly expeditious or difficult or complicated
work. That is paid under the present system, not retrospectively—again,
you know you are going to get paid the basic rate plus a bit if
it is extra good work—but what is proposed here is to offer
a much lower rate than that, to bring it down to CLR rates, and
then put a small risk premium on top of that, so the final rate
you actually end up with is less than you would get on the equivalent
work now. We see no excuse for it paying any High Court work differently
than other High Court work.
Mark Henderson: Could I just add
on that point that we, the Bar Council, were particularly shocked
to find the reference to High Court work being paid by CLR in
the consultation document, given that Parliament had been told
by the Lord Chancellor that a success fee would be paid. We had
discussed in a series of meetings with the DCA the level of risk
premium that should be applied; we then get a proposal which,
if effected according to CLR standard rates—and that was
the implication—would mean that for many barristers you
are looking at cutting the basic rate by 50% and then giving you
25% back. We are happy that the LSC has assured us, though they
have not yet told us how they are going to do that, that they
will rectify that anomaly.
Peter Bottomley: Getting away from the
interests of the Bar and the solicitors, do you think we should
be asking the Government is what they are putting forward proportionate,
is it necessary, is it fair and will it work?
Chairman: I think that is what we are
asking them, and at that point we need to bring these proceedings
to a close. I am very grateful to the three of you for the help
you have given us today; thank you very much.
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