Resultados de las encuestas dirigidas a estudiantes

1. If travelling is over a long distance i.e., round trips of greater than 4 - 5 hours or more, assessors will consider whether it would have been more reasonable and cost effective to instruct enquiry or local solicitor agents. If the event was for a fairly simple matter, like taking witness statements or run of the mill court applications, the amount of time should be reduced to a reasonable level that would cover the fees claimed by an enquiry agent or solicitor practising within working distance of the event i.e., in the region of a 1 hour round trip. The amount of time which may be reasonable will depend on the location of the event being claimed. In rural areas, greater times may be reasonable or if the solicitor experienced difficulty in locating a local agent able to undertake the work. In rural areas, where the case is conducted in London, some work may be done by agent e.g. issuing and lodging papers. If a solicitor conducting a case outside London instructs London agents, then London rates apply. If a London firm conducts a case elsewhere, national rates will apply.

2. The solicitor may claim, because of the specialised nature of the case, his close personal understanding of the matter or the nature of his client, it was more reasonable for him to attend rather than instructing enquiry or local solicitor agents, which whilst saving on travelling time, would have meant the event being handled less effectively and at greater cost to the fund. Also if the claim is reduced to allow for the use of agents you should make a notional allowance for time that would have been spent briefing the agents and considering any reports or correspondence.

3. Where another solicitor or solicitors firm are instructed they stand in the shoes of the conducting solicitors and their costs form part of the conducting solicitor’s profit costs. They are not claimable as disbursements nor can any claim be made on account of solicitors agents fees. If agents are instructed, London rates are payable where the agent is based within the Commission’s London region.

4. Counsel cannot be a solicitor’s agent. Some solicitors, particularly in family cases in the magistrates’ court, employ barristers as an agent in order to circumvent Regulation 59 of the Civil Legal Aid (General) Regulations 1989. Solicitors may indicate that the reason they manage their work this way is because that prior commitments and the distance of the court make instruction of counsel desirable where there are insufficient numbers of local solicitors to use as agents. Solicitors may of course continue to instruct counsel where necessary in the course of litigation but they must do so in accordance with the regulations. Counsel’s fees must be paid under the family graduated fee scheme and/or after the application of the maximum fee principle. Solicitors should be told that the practice of instructing counsel as a solicitor agent must stop immediately, failing which the regional office will consider referral to the firm’s contract manager.

5. The use of counsel either to avoid the application of the maximum fee principle is simply designed to maximise recovery for the solicitor. As such, it is in breach of the standard terms of the General Civil Contract to act reasonably and in good faith. If the practice persists, you should notify your contract manager of the firms concerned.

6. The position on assessment is:

(a) Barristers in Independent Practice

Where barristers in independent private practice are instructed to attend a hearing, they must deliver a fee note. Their charges are barristers' fees and any rates prescribed by regulation must apply. In a family case, where the certificate was issued before 30 April 2001, the rates for counsel's fees are prescribed by the schedules to the Legal Aid in Family Proceedings (Remuneration) Proceedings 1991 except in relation to work done in the Magistrates Court.

October 2003 Basic Principles 38

In both family cases, which are dealt with in the Magistrates court, and civil non-family cases, counsel's fees are not prescribed and thus are the subject of negotiation between the solicitor and counsel's clerks. In these cases, it is possible to renegotiate counsels fees at an hourly rate equivalent to that prescribed for work done by the solicitor. Agreeing to work at the solicitor’s rate does not make counsel an agent of the solicitor.

It should be remembered, however, that

i) If a family certificate was issued on or after 1 May 2001 counsel's fees must be calculated in accordance with the family graduated fee scheme, irrespective of the venue.

ii) In prescribed family cases in the magistrates’ court, whilst no rate is prescribed (certificates issued prior to 1 May 2001 only) the use of counsel must be authorised by the certificate. If authority is not granted, has not been applied for or the assessor considers the case did not justify the use of counsel; the maximum fee principle must be applied.

iii) Where the civil non-family work is done within the magistrates court it is paid as if it was family work: See regulation 9 (2) of the Civil Legal Aid (General)(Amendment) Regulations 2000 and thus the above should be applied.

(b) Barristers Employed within a Solicitor's Practice

There are a small number of barristers who are employees of a Solicitor firm. As they are not barristers in independent practice they are to be treated as fee earners of the solicitors. Any such, employed barristers can be instructed as agents by another firm, just as solicitors employed in the same firm as the barristers could be. Employed barristers, as they are treated as fee earners, show their charges as part of the profit costs of the solicitor’s firm and the relevant rate for the solicitor is applied. If the employed barrister is instructed as an agent of another firm their costs will be charged as profit costs of the instructing firm and charged in the appropriate prescribed rate.

2.15 Travel time by the solicitor