Legal Aid

Are the graduated fee schemes being redesigned?

PUBLISHED July 12, 2015

I am continually reading about the Bar “quietly engaged in a redesign of the AGFS”. MOJ has consistently refused to decouple publicly funded Crown Court remuneration schemes so, ignoring the fact that employed advocates should be engaged in the design process, I should imagine the Bar will either argue or accept that LGFS reform is required too; or perhaps it will not care one way or the other. The Bar certainly didn’t care when the LGFS scheme was implemented, and argued vociferously against me during its design stage; the Bar also argued strongly for a graduated fee scheme to be applied to VHCCs, and I remember well being berated for resisting this too. Presenting solicitors with a fait accompli in relation to the AGFS is wrong on so many levels that I don't want to believe that is a possibility.
It was the Bar that wanted to move away from "input accounting" and argued strongly for an "output based" model. It was Professor Chalkley who strongly argued that lawyers should "break free from the shackles of time recording", and with MOJ and the Bar on the same page they set about designing schemes which relied on undefined "swings and roundabouts" where there were winners and losers but, it was argued, the law of averages would mean fair remuneration was assured.
The reliance on the law of averages is where it all fell down.  I spent many hours arguing that there was no such thing as an average "basket" of cases and that different firms (and advocates) developed different practices and niche specialisms within the field of criminal law.  If clients charged with an offence that was a "loser" under the LGFS gravitated towards a particular practice, that practice would be disproportionately affected by the fee reforms.  Likewise advocates who developed specialisms.  There were marked geographical variances too.  The other reason for the graduated fee schemes' failure to adequately remunerate work is because of the way the "averages" were calculated:

  1. The "outliers" were removed from the calculations (statistically a good thing to do but open to abuse);
  2. The old "red corner" bills were ignored, so straight away the data used to model the scheme was skewed;
  3. PPE was arbitrarily capped at 10,000 pages;
  4. There was a failure to appreciate the significance of an increased reliance on digital evidence by the prosecuting authorities.

Of course, this is all "old news" - we've written about this in detail in our economic analysis of Lord Carter's proposals in 2005 and later in our response to the first LGFS consultation.  But it's the significance of the proposals that I want to people to remember; moving to an average-based model meant accepting that volumes of work had to be controlled.  Only then could the content of the notional basket be assured, or at least less prone to risk.  This marked the beginning of the move towards the dreaded "c" word "consolidation".  It also meant that some criminal lawyers decided it was no longer economically viable (or attractive) to act in certain types of cases.
I worry that already the data available to design a new scheme is insufficient.  With no idea about the time a lawyer spends on a case and information missing on so many key costs drivers (in particular the onward march to "digital by default"), how is it being modelled?  Whatever the result of the CBA "yes" or "no" vote, my plea is for the Bar to engage now with its sister profession in terms of any suggested revision of the AGFS.  If it doesn't, then we'll continue to be slaves to the law of unintended consequences.
Jim Meyer