Government gives way on taking legal aid costs assessments in-house

The Lord Chancellor Robert Buckland (pictured) has agreed to allow solicitors to choose whether civil legal aid bills worth between £2,500 and £25,000 are assessed by the Legal Aid Agency (LAA) or costs judges while the LAA consults solicitors and Costs Lawyers on the most appropriate way for legal aid costs to be assessed in the future.

The society also thanked the ACL’s Legal Aid Group for the help it provided in the dispute.

The decision followed the Law Society lodging a judicial review in September over the controversial decision to move all legal aid cost assessments in-house.

The Administrative Court has now formally endorsed a settlement of the claim, under which the Lord Chancellor has committed to a new decision “preceded by an open-minded, meaningful consultation of legal aid provider firms, Costs Lawyers and their representatives on which body should assess £2,500 to £25,000 claims in future and what the process should entail, including review and appeal arrangements”.

The consultation is expected to run during February 2021, leading to a decision in March or April.  

Pending the new decision, claims worth between £2,500 and £25,000 since 17 August 2020 may be submitted to the court or the LAA for assessment if they have yet to be submitted; and submitted to the court for a de novo assessment if they have already been assessed by the LAA and the firm is dissatisfied with that assessment.

Law Society president David Greene said it was good news that the action had prompted a rethink. “We brought this action because the LAA announced changes to the way legal aid costs were assessed without a credible consultation or evidence to support moving cost assessments from the courts into the LAA.”

Mr Greene explained that the society’s concern was that the LAA may not have the expertise to assess complex costs, whereas cost judges routinely assessed the reasonableness of solicitors’ claims for work on complex cases.

“Equally concerning, the LAA has a stake in the outcome of costs assessments – as payments come from its budget – and so it will not always be the appropriate arbiter, whereas a costs judge is in a position to make an impartial, expert assessment.

“We’re relieved the LAA has agreed to engage in a genuine consultation. In the meantime, solicitors can decide which type of assessment suits them best and if they want an independent costs judge to have the final word on what they are paid.”

Mr Greene said the Law Society was “grateful” to the ACL and the Legal Aid Practitioners Group “for providing valuable insight into the views of their members on the decision to transfer the assessment of all civil legal aid bills to the LAA”.

Bob Baker, co-chair of the ACL’s Legal Aid Group, said: “We are pleased to learn that the LAA have agreed, in principle, to engage in a genuine consultation about abolishing the assessment of civil bills by the courts, and that our expertise in this area has proved valuable to the Law Society’s endeavours. We await the terms of that consultation.

“The LAA has engaged with the ACL LAG before and we have achieved positive outcomes on issues. We gave what we believe to be one of the most detailed and well thought-out responses/analyses, but were disappointed that, on this occasion, the LAA refused to engage on any point except some discussion on the format of the bill. We hope very much that the LAA will now engage with us in everything we raised in our consultation response last year.”

The Law Society was represented by London firm Bindmans LLP and David Wolfe QC.


Picture credit: Attribution 3.0 Unported (CC BY 3.0) licence

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Costs News
Published date
14 Jan 2021

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