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02/04/2008

Law Society v LSC settlement

My grateful thanks to Free Movement for finding this, posting about it and passing it on. A Law Society letter of 2 April 2008 setting out the terms of the settlement of the Law Society’s litigation against the Legal Services Commission has been leaked. A PDF of the letter is here. Apparently, a ministerial statement has been laid before parliament.

[Edit 3 April 08: official Law Society press reports are now released and available here. Only a brief scoop then.]

The main terms follow below, but I have to agree with Free Movement that it doesn’t look like a lot.

There are some minor increases in some fixed fees and some hourly rates, although not the main civil litigation rate. There are a set of joint reviews to take place. The bigger points seem to be under ‘certainty’. The Unified Contract to continue to April 2010 (despite the LSC threats to terminate it). No competitive tendering for civil until 2013 and a 6 month delay in introducing best value tendering for criminal.

However, particularly of interest to housing litigators, there is no mention of whether the transition to set fee scale from hourly rates in certificated work is going ahead or whether it is caught by the LSC’s ‘acceptance’ that its right to amend contracts is significantly curtailed. I presume it is going ahead.

Also of interest are the CLAC and CLAN provisions. Apparently the LSC will announce ‘after the local elections’ where the next swathe will be, with no more till April 2010.

Hmmm. As the letter acknowledges

Whilst we are pleased at the benefits achieved by the litigation, we do not consider this settlement to be the answer to all the problems facing legal aid providers.  We know that many aspects of the Standard Fee Schemes continue to give serious cause for concern.

That seems like understatement. The Law Society’s justification for the settlement is as follows:

It is important to understand the limits of what could have been achieved from success in the litigation. A hearing date for our case had been fixed for late June 2008. Had we not reached a settlement, the LSC would have terminated contracts with a view to introducing new contracts in the autumn in which the graduated fee schemes were unchallengeable. This means that there would have been no prospect of returning to hourly rates. The profession would have been left with a historic dispute over whether they should have been paid on a different basis during this one year, and a prolonged period of disruption and uncertainty.

There is truth in that. But I don’t see how there is currently any prospect of returning to hourly rates either, save for a complete volte face by the LSC. I guess the Law Society considers itself to have bought time for the unworkableness of the whole shebang to become apparent prior to actually being introduced.

——————-

From the letter:

Terms of settlement

Financial benefits

A revised approach to unrecouped payments on account from more than six years ago – subject to cases involving dishonesty and / or greater than £20,000 on an individual case.
An increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08
An increase of 2% in the hourly rates only for Level 2 Family Help lower
Care level 2 fee increased from £347 to £405
5% increase in CLR fees and rates for mental health (whether paid as standard fee cases or exceptional claims), plus 2% for remote travel payments
5% increase in CLR fees and rates for asylum and immigration cases covered by the standard fee scheme (whether paid as standard fee cases or exceptional claims)
New rules on Standard Monthly Payments so that changes will not happen so often, so unpredictably and with such large variations

Stability measures

A commitment by the LSC (subject to certain caveats, particularly relating to CLACs and CLANs) not to terminate the Unified Contract before it expires through effluxion of time in April 2010
Deferment of the further changes to family fee schemes (including standard fees for private law family litigation, adjustments to the escape threshold for care standard fees, and a new advocacy fee scheme) which had been due this year, until April 2010
Acceptance by the LSC that their right to amend contracts is significantly curtailed, and that therefore the historic approach of making significant structural changes during the life of a contract cannot continue
The rule on remainder work will be changed so that firms are entitled to undertake it for two years after termination of their contract, so long as it has not been terminated for fault.

Certainty

The LSC is publishing a route map for civil and family legal aid showing the way forward until 2013, in which it commits not to introduce price competitive tendering for civil and family cases before 2013
The LSC is announcing a delay of six months to the earliest possible date for the introduction of best value tendering for crime, and will publish a full route map in its response to the BVT consultation
The LSC is publishing (once purdah for the local elections is out of the way) a list of the areas in which CLACs or CLANs may be introduced before April 2010. No CLACs or CLANs will be launched outside these areas before that date.

Reviews

The following reviews are being set up, with terms of reference settled in the course of negotiations all reviews to be published.:

The setting up of a Consultative Group equivalent to the Criminal Contracts Consultative Group. An early task for this group will be a full review of the new fee structures
A joint review of peer review accreditation, the specialist quality mark and other quality assurance issues.
A joint working group to address concerns about the contract compliance audit processes.
A joint review of the immigration stage billing problem, with a report to be published by 30th June 2008.
Law Society involvement in the evaluation of CLACs and CLANs, including our Head of Research to be on the advisory board

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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  1. Family Law Week blog - Very interesting post in theNearly Legalblog about the recent settlement of litigation between the Law Society & the LSC. Comments…

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