Litigators


Costs out of Central Funds General requirements

Under Part II of the Prosecution of Offences Act 1985, acquitted defendants who have privately funded their legal representation, private prosecutors, and court appointees may obtain their reasonable costs out of central funds. In proceedings commencing on or after 1 October 2012, legal costs may only be included in a defendant’s costs order in the circumstances set out in section 16A of the Prosecution of Offences Act 1985, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The procedure to be adopted by defendants and private prosecutors when seeking an order from the court is set out in Rules 76.2 and 76.4 of the Criminal Procedure Rules. In the case of Hitendra Patel and a defendant's costs order [2012] EWCA Crim 1508, the Court of Appeal invited all courts to comply strictly with Rule 76.4(4)(b) which provides that where a person wishes the court to make a defendant’s costs order that person must outline the type of costs and the amount claimed if that person wishes the court to direct an assessment.

There is no power in the Crown Court or magistrates’ courts to make an order for costs out of central funds in the absence of specific statutory provision. These specific provisions are set out in Schedule 2 to the Practice Direction on Costs in Criminal Proceedings 2013. The consequences of not amending a legal aid order to reflect the actual legal representation cannot be rectified by awarding costs from central funds. (Regina v Liverpool Crown Court, ex parte Lord Chancellor).

Where the claim solely relates to the applicant's out of pocket expenses, travelling expenses and subsistence allowance, those claims will continue to be dealt with and paid by the magistrates' court and not by the National Taxing Team.

Where a court has made an order for costs the amount to be paid out of central funds will be either:

  • where (i) the court considers it appropriate, and (ii) the person in whose favour the order is made agrees the amount, specified by the court in the order, and paid by the court
  • in any other case, determined in accordance with the provisions of the Costs in Criminal Cases (General) Regulations 1986, by a determining officer of the National Taxing Team.

However, where a defendant’s costs order is made in proceedings which commenced after 1 October 2012, recovery of legal costs from central funds, either when being fixed by the court, or assessed on determination, will be capped at the rates set out in the relevant calculation of legal costs document, and in accordance with the guidance set out in the second and third sections below.

Where the costs out of central funds are to be determined, the claim should be lodged with the National Taxing Team within three months of the order being made. The appropriate claim forms can be downloaded from HMCTS FormFinder.

  • Forms 5911 (Litigator acting) or 5913 (Barrister Direct Public Access) are obligatory for all defence costs claims relating to proceedings commenced on or after 1 October 2012,
  • Other claims for costs out of central funds should follow the precedents annexed to the current practice direction for civil costs, without importing the specific detailed requirements of that direction. FormFinder has a suggested claim form and cover sheet which can be used for such claims.

Inadequately drafted claims which would cause the determining officer undue time and trouble to determine will be returned to the applicant or solicitor. The cost of drafting and preparing a claim for costs out of central funds is not itself a recoverable cost (Morris v Lord Chancellor).

The claim for costs should be accompanied by:

  • documents required to satisfy the indemnity rule as set out below
  • details of the fee earners whose work is claimed i.e. name and professional status
  • a narrative setting out the nature of the case, the role of the defendant, the defence case, and any particular difficulties 
  • a breakdown of the prosecution papers (but not the papers themselves) 
  • the brief and any instructions to advocates and any advices or other written work prepared by advocates 
  • the file of correspondence, attendance and telephone notes
  • proofs of evidence of the accused and any defence witnesses and copies of any other documents prepared such as schedules of evidence. 
  • the 'blue books' or any other contemporaneous records or working notes of attendances, conferences, court hearings, and perusals or any other work done 
  • details of all disbursements and receipted vouchers where appropriate and any related prior authorities 
  • copies of any reports of experts obtained.

Applicants should note that where these requirements are not complied with, the claim may be rejected or the determination delayed to obtain the missing documents or information.
The indemnity principle remains in full force and remains applicable to claims for costs out of central funds (Garbutt v Edwards and R v Cowie). The SRA Code of Conduct at O(1.13) and IB(1.13-1.21 & 1.27) now deals with costs information which must be given both to private clients and publicly funded clients.

In order to check compliance with the indemnity rule the determining officer will want to examine in every case:

  • the original client care letters establishing the terms of the retainer and setting out the charge rates agreed with the client or third party funder
  • whether any block fee or fee cap was agreed
  • any agreed amendment to the rates
  • any overall estimate of costs given for any part of the proceedings 
  • any changes to the estimate 
  • and any interim or final bills rendered to the client, whether or not these have actually been paid.

Claims for defence costs out of Central Funds in proceedings commenced on or after 1 October 2012 and in which an application for representation is made on or after 27 January 2014 and is refused subsequently by the Director of Legal Aid Casework

The provisions of the Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2014 which come into force on 27 January 2014, make further changes to the Prosecution of Offences Act 1985 and to the system through which successful defendants in the Crown Court may be awarded amounts from central funds in respect of legal costs incurred.

The Guidance below sets out the details of the changes to the system:

The document below sets out how amounts payable in respect of legal costs under defendants’ costs orders are to be calculated, in proceedings commencing on or after 1 October 2012 and in which an application for representation is made on or after 27 January 2014 which is refused by the Director of Legal Aid Casework on the grounds of financial eligibility. These are the rates determined by the Lord Chancellor in accordance with regulation 7(7) of the Costs in Criminal Cases (General) Regulations 1986 as amended. The document includes the reduced rates to be applied in proceedings commencing on or after 20th March 2014.

It should be noted that these changes only apply to cases in the Crown Court commencing on or after 1 October 2012 in which an application for representation is made on or after 27 January 2014 and is refused by the Director of Legal Aid Casework on the grounds of financial eligibility. They do not apply to the costs of a private prosecutor, or to the costs of an Appointee under section 4A of the Criminal Procedure (Insanity) Act 1964 or under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 provisions.

The general requirements for defendants’ costs orders and claims for costs out of central funds as set out in the first section above continue to apply.

Claims for defence costs out of Central Funds in the Crown Court and magistrates' courts in proceedings commenced on or after 1 October 2012, and in the Crown Court in which either an application for representation has not been made, or has been made before 27 January 2014

The provisions of Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which came into force on 1 October 2012, made significant changes to the system through which successful defendants and appellants in criminal proceedings may be awarded amounts from central funds in respect of costs incurred.

The Guidance below sets out the details of the new system.

The document below sets out how amounts payable in respect of legal costs under defendants’ costs orders are to be calculated in proceedings commenced in the Magistrates Court and Crown Court on or after 1 October 2012, and in which (in the Crown Court) either an application for representation has not been made, or has been made before 27 January 2014. These are the rates determined by the Lord Chancellor in accordance with regulation 7(7) of the Costs in Criminal Cases (General) Regulations 1986 as amended. The document includes the reduced rates to be applied in proceedings commencing on or after 20 March 2014.

Defendants’ costs orders – calculation of legal costs

It should be noted that the changes do not apply to defence costs in proceedings commenced before 1 October 2012, or to the costs of a private prosecutor, or to the costs of an Appointee under section 4A of the Criminal Procedure (Insanity) Act 1964 or under section 38(4) of the Youth Justice and Criminal Evidence Act 1999.

The general requirements for defendants’ costs orders and claims for costs out of central funds as set out in the first section above continue to apply.

Claims for defence costs in proceedings commenced prior to 1 October 2012, costs of a private prosecutor, and costs of an Appointee out of Central Funds, in the Crown Court and magistrates' courts

In determining defence costs in proceedings commenced before 1st October 2012, costs of a private prosecutor, and costs of an Appointee, National Taxing Team determining officers will be guided as to the reasonableness of hourly rates claimed, by the composite rates set out in the Senior Court Costs Office Guide to the Summary Assessment of Costs. These guidance rates can be found on the Senior Courts Costs Office website.

These rates usually apply to the location of solicitors' office and not to where the matter is tried. However, where a solicitor not local to the court of trial has been instructed, the determining officer may apply a test of reasonableness as to which rate may be considered as relevant. Where the rate claimed is in excess of the guidance rate indicated in the Senior Court Costs Office guide, further explanation should be provided in the narrative of the claim.

With the exception of proceedings under section 82 of the Environmental Protection Act 1990, by the operation of s58A of the Courts and Legal Services Act 1990, and the Conditional Fee Agreements Regulations 2000, criminal proceedings cannot be the subject of an enforceable conditional fee agreement.

Interest cannot be recovered on costs awarded from central funds in a criminal cause or matter (Westminster City Council v Wingrove)

The costs of Appointees ie,

  • a person appointed by the Crown Court under section 4A of the Criminal Procedure (Insanity) Act 1964 to put the case for the defence
  • a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 to cross-examine a witness

are determined by the National Taxing Team under the terms of Part IIIA of the Costs Regulations.
Where such an appointment is made no specific order for costs is made by the court, but the appointee should obtain a written document from the court setting out the nature and extent of the appointment.

The court may specify the hourly rates or a fixed fee payable. This document will be required by the National Taxing Team to enable the claim for costs to be determined. It should be noted that such appointments are limited to the work in court and such preparation reasonably required to undertake such work.

Such an appointment is not authority to recover costs relating to general preparation in the case nor is it an authority to act generally for the defendant in the case.

Section 17(1)(a) of the Prosecution of Offences Act 1985 enables the court to make an order for costs out of central funds in respect of a private prosecutor where the proceedings relate to an indictable offence. This therefore covers proceedings on indictment in the Crown Court and any proceedings relating to an either way offence in the magistrates' court. Such an order made in the magistrates' court would exclude any costs relating to any summary offences dealt with in the same proceedings.

Ex post facto claims under a Representation Order

After 14 January 2008 the legal aid ex post facto remuneration scheme for litigators continued only in respect of work in respect of confiscation proceedings which for the time being remains excluded from the Litigator Fee Scheme operated by the Legal Aid Agency. Separate claims for litigators work relating to confiscation proceedings should continue to be lodged with the NTT on form 5144 (the "yellow corner" form) which can be obtained from FormFinder.

The hourly rates applicable where the Representation Order is dated on or after 14th January 2008 to 19th March 2014 are set out in the table following paragraph 22 of the Criminal Defence Service (Funding) Order 2007 as amended by article 26 of the Criminal Defence Service (Funding) (Amendment) Order 2007.

The hourly rates applicable where the Representation Order is dated on or after 20th March 2014 are set out in the table following paragraph 27 of the Criminal Legal Aid (Remuneration) Regulations 2013 as amended by paragraph 9 of schedule 1 of the Criminal Legal Aid (Remuneration) Amendment) Regulations 2014.

Claims for costs between parties in the criminal courts

The assessment of inter partes costs in the criminal courts whether civil or criminal in nature, have not been assimilated into the regime of the Civil Procedure Rules and remain a self-contained code (HM Revenue & Customs v Viewtopia Ltd). Assessments of inter partes costs in criminal proceedings in the Crown Court and magistrates’ court are now conducted pursuant to Part 76 of the Criminal Procedure Rules 2011. The claim should be drafted in accordance with the general form for inter-partes costs. Rule 76.11 now provides the framework by which inter partes costs are assessed:

  • within three months of the order being made the claimant must serve the claim for costs on the assessing authority and on the respondent paying party
  • within 21 days thereafter, the respondent must serve any objections to the costs claimed, on the applicant and on the assessing authority
  • the assessing authority will then determine the costs, resolving any doubt as to what should be allowed in favour of the respondent.

In the scheme of the Criminal Procedure Rules an oral hearing will not be held at the determination stage, but may be held if required by either party at the re-assessment stage.

Assessments of inter partes criminal costs under orders prior to 4 April 2005 and any costs orders made by the Crown Court exercising its civil jurisdiction are conducted under Part IV of the Crown Court Rules 1982.

Claims lodged out of time

For funding order and central funds applications the time limits are:

  • claims are to be submitted within 3 months of the conclusion of proceedings
  • requests for redetermination are to be submitted within 21 days of receipt of notification of costs payable
  • requests for written reasons are to be submitted within 21 days of receiving notification of the decision on redetermination.

In accordance with the regulations, The National Taxing Team may refuse to accept claims or applications lodged outside these time limits.

However, where an applicant without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the National Taxing Team may, in exceptional circumstances, extend the time limit and must consider whether it is reasonable to impose a penalty on the costs payable.

Where the National Taxing Team is considering imposing a penalty it must allow the applicant an opportunity to make representations. Where a penalty has been imposed a representative or applicant may within 21 days of the decision, appeal to a Costs Judge.

The following protocol applies only to claims under the Funding Orders or Legal Aid Regulations.  Where such a claim is less than 3 months out of time or a request for redetermination or written reasons is less than 21 days out of time, no penalty will usually be applied.

Where such claims or requests are submitted outside those parameters the National Taxing Team will refuse to determine, redetermine or supply reasons unless there is good reason, or exceptional circumstances for delay. Where there is good reason it is unlikely that any penalty will be imposed.

Where there is no good reason but there are exceptional circumstances a penalty will be imposed in accordance with the following tariff:

  • Over 3 months to 6 months out of time - reduction 10%
  • Over 6 months to 12 months out of time - reduction 15%
  • Over 12 months out of time - reduction 20%

Redeterminations and written reasons will be dealt with following the criteria set out, but subject to the relaxation in time scales already identified.

This protocol does not apply to Standard or Graduated Fees or any other claims determined by the Director of Legal Aid Casework, or to claims for costs to be determined out of central funds, or inter-partes under the Criminal Procedure Rules or otherwise by the National Taxing Team.

For central funds claims lodged out of time, where there is good reason and the delay is not excessive it is unlikely that a penalty will be imposed. The statutory provisions in the Criminal Procedure Rules relating to inter-partes claims are different to those applying to Funding Order claims and claims for costs out of central funds.

The National Taxing Team will therefore extend any relevant time limit if it is reasonable to do so, taking into account any representations of the parties involved.

If there is a likelihood that a claim will be submitted either outside the statutory time limits, application should be made to the relevant National Taxing Team regional office before the appropriate date, to extend the time for submission of the claim.

If a claim is submitted outside the statutory time limit, it must be accompanied by a request for leave to file out of time setting out the reasons for the delay and details of any relevant exceptional circumstances. Where reasons for the delay are not given, the claim may be rejected in accordance with the regulatory provisions.

Under all three jurisdictions, legal aid claims, central funds claims in the Crown Court only, and inter-partes claims, there is a right of appeal to the Costs Judge against a decision made by the National Taxing Team to refuse to determine a claim or request made out of time, or to impose a penalty.

Any such appeal relating to legal aid and central funds claims must be lodged with the Senior Costs Judge within 21 days of notification of the decision, though the Costs Judge is able to extend that time limit for good reason. Any such appeal relating to the National Taxing Team as assessing authority in inter-partes costs is not subject to a specific time limit.

What to do if you disagree with the costs allowed by the National Taxing Team

The Costs Regulations do not make provision for redetermination of costs out of central funds incurred in the magistrates’ courts.

However, the National Taxing Team will continue the previous practice of the magistrates’ courts as set out in the Justices Clerks Society Good Practice Guide Taxation of Costs (at page 33) and allow within the discretion of the determining officer an informal scheme of review of amounts allowed, which will be conducted within the general framework of a redetermination in the Crown Court as set out below, and in particular within the same time limits.

On the conclusion of such a review, if any issues remain, the determining officer will prepare a detailed letter setting out the reductions made and the reasons.

In funding order and central funds claims in the Crown Court a request for redetermination must:

  • be lodged with the National Taxing Team within 21 days of notification of the costs allowed
  • be in writing
  • specify the items at issue and the grounds of objection
  • be accompanied by the relevant documents and information
  • state whether or not the applicant wishes to make oral representations in support
  • be signed personally by the applicant.

A request to make oral submissions is not a substitute for a proper written notice, and any request for redetermination which does not comply with the regulations may be rejected.

It is proper for a practitioner to request that errors or omissions in their original claim be rectified, and this will be dealt with in the exercise of the determining officer's discretion.

An applicant has a period of 21 days after being informed of the outcome of the redetermination to request written reasons from the determining officer. Such a request must:

  • state on which matters written reasons are required
  • be signed personally by the applicant

Costs Judges have jurisdiction to hear appeals from the decisions of National Taxing Team determining officers by parties awarded costs out of Central Funds in the Crown Court, solicitors and advocates in legal aid claims, and any parties in inter-partes claims under the Criminal Procedure Rules and the Crown Court Rules.

An appeal is commenced by notice in writing to the Senior Costs Judge within 21 days (for inter-partes claims 14 days) of receipt of written reasons, together with the fee (currently £100) and the supporting material set out at paragraph 5.2.4 and 5.3 of the Practice Direction.

The Notice of Appeal must:

  • follow the Form A in Schedule 3 to the Criminal Costs Practice Direction
  • identify (i) the individual matters which are being appealed to the Costs Judge
  • identify (ii) the amount in dispute in relation to each item
  • be signed by advocates personally or by a partner in the appellant firm of Solicitors.

Failure to serve notice on the National Taxing Team may result in the appeal being dismissed without the merits being considered. Appellants must ensure that they have the written reasons of the determining officer in respect of each item they wish to appeal.

Where the determining officer has not given written reasons, the Costs Judge has no jurisdiction on appeal. Although the Costs Judges do have discretion to hear material in support of costs claimed which was not put before the determining officer, this discretion is only exercised in exceptional circumstances.

HM Courts & Tribunals Service

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