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STATUTORY INSTRUMENTS


2007 No. 1174

LEGAL SERVICES COMMISSION, ENGLAND AND WALES

The Criminal Defence Service (Funding) Order 2007

  Made 3rd April 2007 
  Laid before Parliament 5th April 2007 
  Coming into force 30th April 2007 


CONTENTS

1. Citation and commencement
2. Interpretation
3. Scope
4. Funding of Services
5. Claims for fees by advocates – Crown Court
6. Claims for fees and disbursements by litigators – Crown Court
7. Very High Cost Cases
8. Proceedings in the Court of Appeal
9. Proceedings in the House of Lords
10. The General Criminal Contract
11. Payments from other sources
12. Indictable-only offences
13. Proceedings for contempt
14. Interim payment of disbursements
15. Interim disbursements and final determination of fees
16. Determination of litigators' disbursements
17. Interim payments in cases awaiting determination of fees
18. Amount of interim payments in cases awaiting determination of fees
19. Staged payments in long Crown Court proceedings
20. Interim payments for attendance at trial
21. Hardship payments
22. Computation of final claim where an interim payment has been made
23. Payment of fees to advocates – Crown Court
24. Payment of fees to litigators – Crown Court
25. Notification of fees
26. Recovery of overpayments
27. Adverse observations
28. Wasted costs orders
29. Redetermination of fees by appropriate officer
30. Appeals to a Costs Judge
31. Appeals to the High Court
32. Time limits
33. Revocation

  SCHEDULE 1— Advocates' Graduated Fee Scheme
 PART 1— Definitions and Scope
 PART 2— Graduated Fees for Trial
 PART 3— Graduated Fees for Guilty Pleas and Cracked Trials
 PART 4— Fixed fees
 PART 5— Miscellaneous
 PART 6— Table of Offences

  SCHEDULE 2— Litigators' Fees in the Crown Court
 PART 1— Application and Determination of Litigators' Fees
 PART 2— Standard Fees in the Crown Court

  SCHEDULE 3— Very High Cost Cases

  SCHEDULE 4— Proceedings in the Court of Appeal

This Order is made in exercise of the powers conferred upon the Lord Chancellor[
1] by sections 14(3), 14(5) and 105 of, and paragraph 9 of Schedule 14 to, the Access to Justice Act 1999[2].

     The Lord Chancellor has had regard to the matters specified in section 25(3) of that Act and has consulted the General Council of the Bar and the Law Society in accordance with section 25(2) of that Act.

     Accordingly, the Lord Chancellor makes the following Order.

Citation and commencement
     1. This Order may be cited as the Criminal Defence Service (Funding) Order 2007 and shall come into force on 30th April 2007.

Interpretation
    
2. In this Order—

and, in any case, includes an officer designated by the appropriate officer to act on his behalf for the purposes of this Order;

Scope
     3. —(1) Article 10 of this Order applies to proceedings in magistrates' courts only.

    (2) Article 12 of this Order applies to proceedings in magistrates' courts and to proceedings in the Crown Court.

    (3) Articles 5, 6, 14 to 24, and 29 to 31 of, and Schedules 1 and 2 to, this Order apply to proceedings in the Crown Court only.

    (4) Articles 4, 7, 11, 13, 25 to 28 and 32 of, and Schedule 3 to, this Order apply to proceedings in the Crown Court and to proceedings in the Court of Appeal.

    (5) Article 8 of, and Schedule 4 to, this Order apply to proceedings in the Court of Appeal only.

    (6) Article 9 of this Order applies to proceedings in the House of Lords only.

    (7) For the purpose of this Order any reference to the Court of Appeal includes a reference to—

Funding of Services
    
4. —(1) Where a representation order is granted on or after 30th April 2007 for proceedings in the Crown Court or Court of Appeal—

    (2) Where a representation order is granted on or after 1st April 2003, but before 30th April 2007 for proceedings in the Crown Court or the Court of Appeal—

    (3) Where a representation order is granted before 1st April 2003 for—

the duty of the Commission under section 14(1) of the Act has effect as a duty of the Lord Chancellor and the provisions of the Criminal Defence Service (Funding) Order 2001 apply.

    (4) Where a representation order is granted before 1st April 2003 for—

the Commission must fund representation in accordance with its duty under section 14(1) of the Act and the provisions of the Criminal Defence Service (Funding) Order 2001 apply.

Claims for fees by advocates – Crown Court
     5. —(1) Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to this Order.

    (2) A claim for fees under this article and Schedule 1 must be made by each instructed advocate.

    (3) Subject to article 32, a claim by an instructed advocate for fees in respect of work done under a representation order must not be entertained unless he submits it within three months of the conclusion of the proceedings to which it relates.

    (4) An instructed advocate must submit a claim for fees to the appropriate officer in such form and manner as he may direct.

    (5) An instructed advocate must supply such further information and documents as the appropriate officer may require.

    (6) Where a confiscation hearing under Part 2 of the Proceeds of Crime Act 2002[
7] (Confiscation: England and Wales), section 2 of the Drug Trafficking Act 1994[8] (confiscation orders) or section 71 of the Criminal Justice Act 1988[9] (confiscation orders) is to be held more than 28 days after—

an instructed advocate may submit any claim for fees in respect of the trial or guilty plea as soon as the trial has concluded or the guilty plea has been entered.

    (7) Where a representation order provides for representation by—

that QC must be treated for all the purposes of this Order as having been instructed under that representation order, and his remuneration must be determined as if he were not a QC.

    (8) This article does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.

Claims for fees and disbursements by litigators – Crown Court
     6. —(1) Claims for fees by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 2 to this Order.

    (2) Claims for disbursements by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of articles 14 to 16.

    (3) Subject to article 32, a claim by a litigator for fees in respect of work done under a representation order must not be entertained unless he submits it within three months of the conclusion of the proceedings to which it relates.

    (4) Subject to paragraph (5), a claim for fees in proceedings in the Crown Court must be submitted to the appropriate officer in such form and manner as he may direct and must be accompanied by the representation order and any receipts or other documents in support of any disbursement claimed.

    (5) A claim must—

    (6) Where the litigator claims that paragraph 6(1) of Schedule 2 applies in relation to an item of work, he must give full particulars in support of his claim.

    (7) The litigator must specify any special circumstances which the litigator considers should be drawn to the attention of the appropriate officer.

    (8) The litigator must supply such further information and documents as the appropriate officer may require.

    (9) This article does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.

Very High Cost Cases
    
7. Where services are provided in a Very High Cost Case which is the subject of an individual contract for the provision of funded services—

Proceedings in the Court of Appeal
    
8. Claims for fees by representatives in proceedings in the Court of Appeal must be made and determined in accordance with the provisions of Schedule 4 to this Order.

Proceedings in the House of Lords
    
9. —(1) In proceedings in the House of Lords, the fees payable to a representative under sections 13 or 14 of the Act must be determined by such officer as may be prescribed by order of the House of Lords.

    (2) Subject to paragraph (1), this Order does not apply to proceedings in the House of Lords.

The General Criminal Contract
    
10. —(1) Where the Commission funds services as part of the Criminal Defence Service under section 13(2)(a) or 14(2)(a) of the Act, remuneration must be at rates no higher than those set out in Part E of the Specification to the General Criminal Contract, published by the Commission in February 2001, as amended[10].

    (2) Paragraph (1) does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.

Payments from other sources
     11. Where a representation order has been made in respect of any proceedings, the representative, whether acting under a representation order or otherwise, must not receive or be a party to the making of any payment for work done in connection with those proceedings, except such payments as may be made—

Indictable-only offences
     12. —(1) Where a case is sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998[11] (No committal proceedings for indictable-only offences), any fees in relation to work carried out in the magistrates' court must be assessed and paid—

    (2) Paragraph (1) does not apply where the case is remitted to a magistrates' court.

Proceedings for contempt
     13. —(1) Where representation is provided in proceedings referred to in section 12(2)(f) of the Act (proceedings for contempt in the face of a court), the Commission may only fund services as part of the Criminal Defence Service under section 13(2)(b) or 14(2)(b) of the Act.

    (2) The provisions of Schedules 1, 2, 3 and 4 do not apply to proceedings referred to in section 12(2)(f) of the Act.

    (3) Subject to paragraphs (4) to (11), remuneration for advocates in proceedings referred to in section 12(2)(f) of the Act must be at the rates specified in the table following this paragraph.

Category of advocate Payment rates (£ per day)
QC 300
Leading junior 225
Led junior or junior acting alone 150

    (4) Where an advocate and a litigator are instructed in proceedings referred to in section 12(2)(f) of the Act, remuneration must be at the rates specified in the table following this paragraph, as appropriate to the category of advocate.

Category of advocate Advocate's payment rates(£ per day) Litigator's payment rates (£ per day)
QC 175 125
Leading junior 125 100
Led junior or junior acting alone 100 50

    (5) A litigator, or, in the Court of Appeal, an advocate, may, where he claims remuneration for work done in respect of proceedings referred to in section 12(2)(f) of the Act, claim that there are exceptional circumstances which justify remuneration greater than the standard fee specified in paragraph (3) or paragraph (4).

    (6) If the appropriate officer considers that there are such exceptional circumstances, he may allow the litigator, or, in the Court of Appeal, the advocate, such fee as appears to him to be reasonable (having regard to the standard fee) for such work as appears to him to have been reasonably done.

    (7) If the appropriate officer considers that there are no such exceptional circumstances, the standard fee must apply.

    (8) The fee payable to a litigator under this article must not exceed the rates set out in Schedule 2 as appropriate to the type of work, the court in which the proceedings took place, the grade and the situation of the office of the fee earner who did the work.

    (9) In the application of paragraph (8), the rates appropriate to the Crown Court shall apply to proceedings in all courts other than a magistrates' court.

    (10) The fee payable to an advocate in the Court of Appeal under this article must not exceed the maximum basic fee for a junior counsel set out in the Table following paragraph 10 of Schedule 4.

    (11) The provisions of articles 5, 6, 19, 23, 24, 29, 30 and 31 apply with the necessary modifications to the remuneration payable to a representative under this article.

Interim payment of disbursements
    
14. —(1) A litigator may submit a claim to the appropriate officer for payment of a disbursement for which he has incurred liability in proceedings in the Crown Court in accordance with the provisions of this article.

    (2) A claim for payment under paragraph (1) may be made where—

    (3) Without prejudice to articles 16(4) and 16(5) a claim for payment under paragraph (1) must not exceed the maximum amount authorised under the prior authority.

    (4) A claim for payment under paragraph (1) may be made at any time before the litigator submits a claim for fees under article 6.

    (5) A claim for payment under paragraph (1) must be submitted to the appropriate officer in such form and manner as he may direct and must be accompanied by the authority to incur expenditure and any invoices or other documents in support of the claim.

    (6) The appropriate officer must allow the disbursement subject to the limit in paragraph (3) if it appears to have been reasonably incurred in accordance with the prior authority.

    (7) Where the appropriate officer allows the disbursement, he must notify the litigator and, where the disbursement includes the fees or charges of any person, that person, of the amount payable, and must authorise payment to the litigator accordingly.

    (8) Articles 29 to 31 do not apply to a payment under this article.

Interim disbursements and final determination of fees
    
15. —(1) On a final determination of fees, articles 6(2) and 16 apply notwithstanding that a payment has been made under article 14.

    (2) Where the amount found to be due under article 16 in respect of a disbursement is less than the amount paid under article 14 ("the interim payment"), the appropriate officer must deduct the difference from the sum otherwise payable to the litigator on the determination of fees, and where the amount due under article 16 exceeds the interim payment, the appropriate officer must add the difference to the amount otherwise payable to the litigator.

Determination of litigators' disbursements
    
16. —(1) Subject to paragraphs (2) to (5), the appropriate officer must allow such disbursements claimed under article 6(2) as appear to him to have been reasonably incurred.

    (2) If the disbursements claimed are abnormally large by reason of the distance of the court or the assisted person's residence or both from the litigator's place of business, the appropriate officer may limit reimbursement of the disbursements to what otherwise would, having regard to all the circumstances, be a reasonable amount.

    (3) No question as to the propriety of any step or act in relation to which prior authority has been obtained under CDS Regulations may be raised on any determination of disbursements, unless the litigator knew or ought reasonably to have known that the purpose for which the authority was given had failed or had become irrelevant or unnecessary before the disbursements were incurred.

    (4) Where disbursements are reasonably incurred in accordance with and subject to the limit imposed by a prior authority given under CDS Regulations, no question may be raised on any determination of fees as to the amount of the payment to be allowed for the step or act in relation to which the authority was given.

    (5) Where disbursements are incurred in taking any steps or doing any act for which authority may be given under CDS Regulations, without such authority having been given or in excess of any fee so authorised, payment in respect of those disbursements may nevertheless be allowed on a determination of disbursements payable under article 6.

Interim payments in cases awaiting determination of fees
    
17. —(1) The appropriate officer must make an interim payment in respect of a claim for fees in proceedings in the Crown Court in accordance with this article.

    (2) Entitlement to a payment arises in respect of a claim for fees—

    (3) For the purposes of this article, the following claims for fees are related to each other —

    (4) Entitlement to a payment under paragraph (1) does not arise until three months have elapsed from the earlier of—

    (5) A litigator or an instructed advocate may submit a claim for an interim payment under this article where—

    (6) Subject to article 32, payment must not be made under this article unless the representative has submitted a claim for fees in accordance with article 5(3) or article 6(3), as appropriate.

Amount of interim payments in cases awaiting determination of fees
    
18. —(1) Where entitlement to an interim payment arises under article 17, the amount payable is 40 per cent of the total claim for fees, less any sum already paid.

    (2) Articles 29 to 31 do not apply to an interim payment under this article.

Staged payments in long Crown Court proceedings
    
19. —(1) A litigator or an instructed advocate may submit a claim to the appropriate officer for a staged payment of his fees in relation to proceedings in the Crown Court.

    (2) Where a claim is submitted in accordance with this article, a staged payment must be allowed where the appropriate officer is satisfied—

    (3) In this article "preparation" means—

and is limited to preparation done before the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987 (commencement of trial and arraignment), in which case it is limited to preparation done before the date on which the jury is sworn (or on which it became certain, by reason of pleas of guilty or otherwise, that the matter would not proceed to trial).


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URL: http://www.bailii.org/uk/legis/num_reg/2007/20071174.html