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:
- The basic assumption is that public transport will be used where possible. It is recognised that for many reasons this may not be possible.
- If private travel is used and mileage is claimed then the payment will be made at the ?experts? rate of 25p per mile; unless,
- The ?standard? rate of 45p per mile is justified. The standard rate will only be paid where there is appropriate justification on the claim form for deciding to use private travel instead of public transport.
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.
Litigator Graduated Fees ? travel expenses
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.
The basic rule
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.
Public transport rate v private transport rate
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.
- If private transport is justified then 45 pence per mile AND parking etc will be paid.
- If public transport is appropriate and used, the cost will be refunded.
- If public transport is appropriate but the solicitor elects to use his own private transport, a rate of 25 pence per mile will be paid. Parking etc will be refused. (See also: R v Conboy, SCCO, unreported, January 1990).
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.
Justifying private transport
As an immediate first step solicitors should ensure that:
- Any transportation is justified in the first place (ie that attendance at court was necessary)
- That any claim for the private mileage rate is justified when the claim is submitted
In R v Slessor (SCCO, unreported, October 1984) the Costs Judge ruled:
- Prima facie the amount to be allowed is the cost of the time expended on and the expenses incurred in making the journey by public transport, provided that public transport is available and is reasonably convenient, having regard to the relevant circumstances in each case;
- A solicitor is not entitled to claim the cost of the time spent or cost incurred in travelling to his office from his home; the journey should be deemed to start from the solicitor's office, unless he in fact started from his home and that was nearer to the court than his office;
- Allowance made should include the time spent and expense incurred in getting from the starting point to the railhead or coach station and also the time spent and expense incurred in getting from the terminus to the court;
- A solicitor travelling by train may claim the cost of first class travel if he has actually incurred that expense [Note that in the Lord Chancellors guidance issued under the 1986 regulations first class travel is ordinarily not allowed]
- If the journey is one which could have been made by public transport, but is accomplished by motor car purely as a matter of preference, then the allowance to be made for travelling time should be the notional time which would have been taken by public transport, or the time actually spent, whichever is the less: expenses should be calculated on the basis of the "public transport" mileage rate (that rate is calculated by reference to the average cost of public transport per mile) which is prescribed pursuant to the 1977 Regulations;
- If public transport is not available or not reasonably convenient, the actual time spent in travelling should be allowed and the expenses should be calculated on the basis of the standard mileage rate prescribed by the 1977 Regulations;
- What may be "not reasonably convenient" is a matter of discretion, dependent upon the relevant circumstances of each case, and what is reasonably convenient in one set of circumstances may not be in another; a factor which is always relevant is the time which may have been spent in getting from the starting point to the railhead, and from the terminus to the court; if it is considerable, the use of a car may be justified - the taxing master urged determining officers to adopt a flexible and broad approach to the problem.
In addition to the general points above, the following may well be reasons to justify private travel rate:
- Not able to attend court on time if public transport is used (bear in mind that most solicitors start work at 9am and attendance at the crown court is required by 9.30 at the latest).
- No public transport available at all for the journey.
- The cost of public transport would be greater than the cost of private transport.
- Travel by public transport would mean travelling at an unreasonable hour.
- Necessary by reason of disability.
- Transportation of heavy case papers.