The MoJ proposes putting the LAA instead of the courts in charge of all bills without an inter partes element worth between £2,000 and £25,000. The LAA already handles bills below £2,000. The courts assessed about 21,000 bills in the past financial year.
The Civil Legal Aid Bills Consultation closed on 10 April. It can be found here.
In its response this week, the Association of Costs Lawyers (ACL) warned the LAA lacked the independence and capacity for the job and questioned how genuine the consultation was.
The MoJ published the consultation in February after settling a judicial review brought by the Law Society over its unilateral decision last summer to make the change.
The ACL noted the consultation did not propose any alternatives, did not contain a formal costs-benefit analysis and did not say how much the extra work would cost the LAA.
Its response states: ‘The LAA has clearly demonstrated in their previous actions that they have already reached a decision in respect of the proposal and have only prepared this consultation as a result of the judicial review brought by the Law Society to go through the motions of what was agreed.
‘The guidelines clearly state that consultations should take place when plans are at a formative stage and not ask questions about issues on which a final view has already been reached.’
It calls the lack of neutrality a ‘grave concern’, especially with the LAA directly accountable to ministers, and this extends to the appeals process; the independent costs assessor who adjudicates on appeals is chosen and paid by the LAA, which also provides all the material and communications.
It suggests the LAA is drawing a ‘false equivalence’ between the time caseworkers currently spend checking and processing court-assessed bills with how long it would take to actually assess a bill of up to £25,000.
‘When assessing complex cases with bills of up to £25,000, the caseworker will need to determine what is reasonable and proportionate without reference to any pre-agreed/determined detailed budget,’ the response says.
‘It is understood that the LAA assessors themselves have no legal experience to draw on when undertaking their assessments of complex legal processes, where often an understanding of what happens in actual practice is a major benefit to an assessor.’
The response says costs lawyers’ experience is that ‘there has always been a noticeable difference between assessments carried out by the LAA and the courts, where LAA caseworkers frequently disallow items that are reasonable and proportionate’.
This is all likely to lead to an increased number of appeals, the cost of which providers have to absorb and which would also hit the LAA’s resources.
Bob Baker, co-chair of the ACL’s legal aid group, said: ‘While the stated aim of making the assessment of bills quicker and cheaper is admirable, we fear that what the MoJ is proposing will replace court assessment with a far inferior system that ultimately―because of the problems it will cause―will not save anything.
‘This is not just a question of better administration. If solicitors fail to cover their costs of providing legal aid services at properly remunerated rates, they will cease undertaking such work.’
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