Legal Aid

Graduated fees for VHCC cases is not viable, says Law Society

PUBLISHED December 7, 2009

The Law Society has hit back at plans from the Legal Services Commission to extend the barely-tested Litigators Graduated Fee Scheme to very high cost cases (VHCC).

After the LSC launched its consultation this week on VHCC fees the Society highlighted major problems with the move.

Robert Heslett, Law Society President, says:

?We do not consider that expanding the Litigators Graduated Fee Scheme VHCCs is a viable option. The LGFS has not been in place long enough to have been properly evaluated. There have been numerous problems with it. It underpays for certain types of serious and sexual assault case, and for cases which are prepared for trial but then result in a guilty plea.

?There have been operational difficulties in validating the pages of prosecution evidence on which the payment calculation depends. The scheme needs to be made to work for the cases for which it was designed before it can be extended to additional cases.?

?The scheme does not have any mechanism to take account of the work on unused material or the management required on very high cost cases. It depends on a 'swings and roundabouts' principle, but as most firms will only handle one or two VHCC cases per year, the sample is not large enough for the swings and roundabouts effect to function and firms will be subject to a greater risk of incurring substantial losses on these cases.?

The Law Society participated in a working group, including the Legal Services Commission and the Ministry of Justice, to consider how payments to solicitors and barristers conducting very high cost cases may be made more effectively.

Robert Heslett says: ?During those meetings the idea of extending the LGFS scheme to VHCCs was not one of the topics under discussion, so it is a matter of great concern that the proposals were added in at the last minute without any proper discussion.

?However, we are aware that the MoJ has been put under some pressure as a result of last week's National Audit Office report to consider extending the graduated fee schemes.?

The Law Society also points out that an extended advocates graduated fee scheme also raises many challenges. It may not be attractive to advocates without addressing some of the structural issues the working group has been discussing. Advocates may as a consequence be less likely to take on cases under the proposed system and this could have serious implications for clients being able to obtain representation in long running trials.