About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 17 December 2013

Legal Aid Update: Miscellaneous Part 2

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.

12.5 Time Recording Is Still Important

12.5.1 It is vital to keep recording the full amount of time you spend under the FAS as otherwise you will give LAA ammunition to reduce the fees even further if they can provide evidence that we are making a “profit” on the scheme on a consistent basis.

12.5.2 Our own experience is that when preparation is properly recorded our time recorded figure and the amount of FAS is very similar and possibly even lower than what we would have got if the further uplift we could have claimed would have been allowed.

12.5.3 It seems to be more difficult to make the FAS work in your favour when acting for child. It is very difficult to get bolt-ons for a child.

12.6 FAS attendance forms do not need to be sealed but do need to be signed by the Judge/Clerk and any bolt-ons stamped or initialled.

12.7 Two hearings in one day?

12.7.1 We do not have to apportion times so very good use of FAS.

12.7.2 Try to get your cases listed on same day and only have one advocate at court if possible.

12.7.3 Can claim the travel bolt-on for each hearing but will have to apportion any disbursement claims

12.8 Final/Interim Hearing

12.8.1 A final hearing is any hearing which is listed by the court for the purposes of making a final order.

12.8.2 This can be for the whole of the issues in the case or all the issues in a particular aspect. This means that Fact Finding hearings are treated as final hearings as the Court is finally resolving all the factual issues.

12.8.3 IMPORTANT: a case listed for directions only cannot be claimed as final hearing even if the case concludes.

12.8.4 IMPORTANT: a case concluding at an IRH is a final hearing.

12.8.5 IMPORTANT: a case listed for disposal as a consent order or which is otherwise not expected to be contested or effective is not a final hearing

12.8.6 In care proceedings, the final hearing will be the one at which the court determines whether or not a Section 31 Order is made. BUT it still has to conform to the rules above

12.8.7 An EPO and most secure accommodation applications will only have one hearing and this will be a final hearing.

12.8.8 Cases where LA simply withdraws its application will not be a final hearing but if the court determines at a contested hearing that there was a procedural irregularity meaning the proceedings are dismissed then it is arguable whether it is a final hearing or not. If the case was listed as a contested hearing and this issue was known about when listed then we would argue it is a final hearing.

12.8.9 In private law proceedings you have the added complication of the restriction of your legal aid certificate which prevents you from claiming for a contested final hearing unless you extend the scope to cover “legal representation”. Therefore, our current view is that if your certificate is only “Family Help Higher” or is in any other way limited so as not to cover you for a contested final hearing you will not be able to claim a final hearing fee.

12.8.10 You cannot claim an interim hearing fee for a hearing listed as a final hearing in private law. If you do attend it will be entirely for free.

12.8.11 A fact finding hearing in a private law case is treated as a final hearing but you do not need to get your certificate extended to Legal Representation unless and until the case is finally listed for a contested final hearing other than a fact finding..

12.8.12 In DV cases, if the return date is a contested hearing then we would argue this is a final hearing and the certificate for DV covers final hearings.

12.8.13 If the court orders a review after a final order (realistically only in private law) then that further hearing is not a final hearing even if the court varies the final order already made.

12.8.14 Normally only one FAS form is needed for a final hearing with the total number of days inserted. However we would suggest getting the FAS form signed off by the judge at the end of a Fact Finding hearing as too much risk of forgetting at end especially if different advocate. There is also the risk that your client ceases to give instructions or the case is transferred and you do not get to attend the remaining part of final hearing.

12.8.15 Attending for Handing down of Judgment: attendance for this is not treated as advocacy and a FAS fee is not claimable. If a solicitor attends it can be claimed as part of the main fixed fee.

12.8.16 However, if anything has to be decided after the handing down of judgement then it will be a hearing and will be claimable as part of the main hearing. For example; deciding on disclosure of documents following judgement.

12.8.17 It is presumed that the same advocate will attend the fact finding and the disposal hearing (or indeed for judgment as above). However if they are different then it is still one final hearing and all the usual bolt-ons will apply across the board but only one bundle bolt-on can be claimed. The advocates may have to fight for this between themselves. Indeed the bundle bolt-on could increase by the disposal hearing and the higher one can be claimed.

12.8.18 We advise that the second advocate should make it clear on the FAS form that this is part of a larger hearing, eg by writing “Days 5-9 of final hearing” on the FAS form and getting that initialled.

12.8.19 It is also good practice for the final order to indicate the days that have been taken overall in reaching the decision including any days directed for written submissions as this will help in any claim. For example the order may state “Upon the Court sitting on 3, 4, 5, 6, 7, February and on 9, 10, 11, and 12 October……”. It will then be clear that this was a 9 day final hearing.

12.8.20 If the Court directs a review hearing after the final hearing this is not part of the final hearing and should be claimed as an interim hearing whatever happens at that hearing. But check that your certificate still covers it.

12.8.21 NB enforcement proceedings can result in 2 final hearings. Therefore if you obtain a contact order in the main proceedings but then have your certificate amended to enforce that order the final determination of those enforcement proceedings will also be a final hearing.

12.9 When FAS form not needed

12.9.1 Advocates meetings (although a detailed attendance note will be needed to justify the work).

12.9.2 Telephone call/videoconference hearings. Again detailed attendance note needed and reasons for claiming bolt-ons very clearly specified albeit that these may be more difficult to claim in such a situation.

12.9.3 Any hearing when minimum unit being claimed with no bolt-ons. However, counsel will still need a brief.

12.9.4 Cancelled hearings where a one hour unit hearing can be claimed by external advocate if undertaken at least 30 minutes preparation.

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