Following National Audit Office review, the LSC has been required to examine travel claims for LGFS claims.
The LSC has assured the profession?s representative organisations that there is no intention on the part of the LSC to reduce travel claims where they are appropriate but that there must be proper justification. Rodney Warren, the CLSA and CrimeLine have produced some useful guidance for practitioners, which is reproduced below
LF1 travel claims should be made against the following criteria:
There are many circumstances (possibly the vast majority of cases) where it will be entirely appropriate to claim (and be paid) mileage at the standard rate of 45p per mile. Both the LGFS guidance and the Criminal Bills Assessment Manual (paragraph 4.13.6 ? reproduced below) are helpful.
Travelling expenses may be allowed to reimburse the fare actually paid. First class travel rates for a solicitor or other professional or expert may not be claimed. There is a presumption that the most economical form of transport will be used taking into account the combined costs to the fund of the disbursement and the time taken at the profit cost travel rate. Both elements need to be borne in mind e.g. whilst travelling by coach may be cheaper than the train in terms of the fare, the total cost to the fund of the former might be greater in the particular circumstances if one adds in the extra time the journey will take at the hourly travelling time rate. Private transport may be more economical bearing in mind the additional time taken if public transport is used. If the journey could have been made by public transport, but a private car was used instead and that is less economical, the assessor should allow the notional travelling time (where standard fees apply only) and costs that public transport would have taken. Where a less economical method of transport has been used, then the costs may be reduced to the level that would have been incurred had the more economical method been adopted. Assessors should note that on occasions a fee-earner may have to travel with bulky case papers and reference books. There is also a security and confidentiality issue in that solicitors must keep safe from interference or theft the client related material that they carry. In such circumstances it may not be reasonable to expect a solicitor to use public transport. The onus is on the solicitor to provide relevant justification on file.
Solicitors will have noted, and will my now be experiencing the effects of the recent notification from the LSC in relation to LGF travel expenses. The LSC has indicated that it will only pay the ?public transport rate? of 25 pence per mile (and no parking etc), unless the private transport rate (45 pence) is justified.
Disbursements are claimable by virtue of The Funding Order 2007, Art 16, which states:
(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.
The reference to a public transport rate can first be found in the 1977 legal aid regulations, not of course defunct. The 1986 regulations empowered the Lord Chancellor to issue guidance to taxing officers, and the Determining Officers Notes for Guidance makes reference to the 2 rates. It is notable that the present 2007 Funding Order finds it origins in the Access to Justice Act 1999, and to date the Lord Chancellor has issued no guidance in relation to that order. It is therefore questionable whether the guidance on DONG still applies.
However, the concept of public vs private transport can be found in a number of taxation documents and cases and it is therefore prudent to proceed on the basis that the distinction is still a valid one.
The rate of 25 pence per mile is a notional rate and is used in order to prevent the determining officer having to calculate the actual equivalent cost of public transport. This approach is consistent with normal principles of taxation.
On the face of it therefore, the LSC?s approach is simply now to enforce what has always been the case.
As an immediate first step solicitors should ensure that:
In R v Slessor (SCCO, unreported, October 1984) the Costs Judge ruled:
In addition to the general points above, the following may well be reasons to justify private travel rate: