https://www.slab.org.uk/guidance/32877/
https://www.slab.org.uk/guidance/32877/
Other than in exceptional cases covered by Regulation 10ZA of the Fees Regulations preparation is only payable where an appeal has been fixed under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees.
Paragraph 9 of the notes on the operation states:
“Where a hearing has been fixed in an appeal under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees counsel may claim an additional fee for preparation for the hearing only where:—
Where a hearing has been fixed under paragraph 3, 4 or 6 we may allow preparation where we are satisfied that either of these criteria have been met.
This applies to the following hearings:
The majority of cases payable under paragraph 1 and paragraph 2 will not attract any separate preparation charge.
The only exception to this is where the criteria under paragraph 4 of the notes on the operation is met.
This states:
“In a hearing as specified in paragraph 1(c) or (d) or 2(b) of Chapter 1 or 2 of Part 2 of the Table of Fees which is set down for half a day or longer or where the appellant has been sentenced to a period of imprisonment of 10 years or more, to life imprisonment or where an order for lifelong restriction has been made, the fee payable shall be that in the range specified in paragraph 3(d) of Chapter 1 or 2 of Part 2 respectively.”
This allows us to pay the respective hearing under paragraph 3(d) where we are satisfied that the appeal hearing:
Where we are satisfied that any of these criteria are met preparation falls to be considered in line with paragraph 9 above.
Where a claim for preparation is made you must provide us with a detailed narrative in support of the claim with reference to the factors under paragraph 9 of the notes on the operation to allow us to be satisfied:
Where we are not satisfied either of those requirements are met we must disallow the claim for preparation and invite you to provide further information in support of the claim.
Paragraph 5 of the notes on the operation states:
“Subject to paragraphs 9 to 11B below, the fees including those within a range of fees, as prescribed in Part 2 of the Table of Fees, shall include all preparation”.
Unless we are satisfied that conditions under paragraphs 9 to 11B are met we must disallow any preparation charged.
Paragraph 9(a) of the notes on the Operation states:
“Where a hearing has been fixed in an appeal under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees counsel may claim an additional fee for preparation for the hearing only where:—
The majority of appeals are set down for less than a day.
However, where the case is set down for a day or more a separate fee for preparation may be payable.
Where a higher fee within the range for an appeal hearing has been allowed on the basis that the case was set down for a day or more, two hours preparation must be discounted for each appeal hearing.
For example, where there is a two day appeal against conviction hearing and you have indicated that additional preparation was twelve hours, it may be reasonable to allow one day preparation (eight hours) but the remaining four hours is included in the fee which is payable in respect of the two day appeal hearing.
Paragraph 9(b) of the notes on the operation states:
“Where a hearing has been fixed in an appeal under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees counsel may claim an additional fee for preparation for the hearing only where:—
Where the case is considered to be abnormal in magnitude, or difficulty, or in any other material a separate fee for preparation may be payable.
Paragraph 11A of the notes on the operation states:
“In assessing the amount of time for which an additional fee for preparation is payable the Board, or the Auditor as the case may be, will consider the amount of time that is reasonable having regard to the following factors:—
Where a higher fee within the range for an appeal hearing has been allowed on the basis that the case was set down for a day or more we must discount 2 hours preparation for each appeal hearing.
Where we are satisfied that preparation is payable we must allow preparation at the prescribed rate under Paragraph 11B.
Paragraph 11B of the notes on the operation states:
“The additional fee shall be calculated by dividing the time allowed for additional preparation in terms of paragraph 11A above into units of 8 hours, each unit payable at the rate of two thirds of the prescribed fee or the fee deemed appropriate within the range of fees in Chapter 1 or 2 of Part II of the Table of Fees”.
Where we are satisfied that preparation is payable under paragraph 9, we must allow each 8 hour unit of preparation at two thirds of the prescribed fee or the fee within the range payable under paragraph 3, 4 or 6.
Paragraph 10 of the notes on the operation states:
“Where an additional fee for preparation is claimed counsel must provide the Board with details of the nature of the preparation including:—
Where we are not satisfied that the full level of preparation is payable we must invite you to provide us with the supporting documentation that is included in paragraph 10(b) and 10(c) of the notes on the operation.
These state:
“(b) records providing a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused at each stage of the process, the time taken and when and where the work was undertaken and the details of authorities referred to in the course of preparation; and
(c) any contemporaneous record or notes made in the course of preparation”.
Paragraph 11 of the notes on the operation states:
“Except on cause shown, an additional fee for preparation shall only be allowable once to both junior and senior counsel notwithstanding that the assisted person may be represented by more than one junior or senior counsel or both during the course of the case”.
Where we are satisfied that preparation is payable under paragraph 9 and there has been a change of counsel in the appeal we must also be satisfied that it is reasonable to allow payment of preparation to both counsel.
For example, if senior counsel is acting and is elevated to the Bench it would be necessary for incoming counsel to ‘read in the case’ and charge reasonable preparation to continue the appeal.
It would also be reasonable to allow outgoing counsel preparation given the reason for the change in counsel.
Where we are not satisfied that payment for preparation is payable more than once we must allow a reasonable level of preparation to the appropriate counsel and ask the ‘other’ counsel to provide further information in support of the claim.
Regulation 10ZA(1) to (4) states:
Where a hearing has not been fixed, Regulation 10ZA of the Fees Regulations allows counsel to be paid an additional fee for preparation of the note of appeal and counsel’s opinion on the merits of an appeal prior to a hearing being fixed.
The additional fee can only be paid where we are satisfied that that an assisted person would otherwise be deprived of a right to a fair trial because of the amount of fees payable to counsel.
Regulation 10ZA(5) to (8) states:
You should make an application, at as early a stage in the provision of criminal legal aid as is reasonably practicable, explaining what circumstances exist that would be likely to result in an assisted person being deprived of effective legal assistance if preparation was not to be paid in addition to the existing fees that are chargeable, via email to one of the following Accounts Specialists:
Regulation 10ZA(9) states:
“The modifications to the notes on the operation of schedule 2 referred to in paragraph (2) are as follows—
Where it has been determined that preparation is payable, paragraph 11A of the notes on the operation, has been amended in order that it can be read as follows:
“In assessing the amount of time for which an additional fee for preparation is payable the Board, or the Auditor as the case may be, will consider the amount of time that is reasonable having regard to the following factors:—
Where a claim is made for exceptional preparation we must consider the facts and circumstances of the case.
We must allow reasonable preparation for time spent by you in preparation of the note of appeal and the opinion on the merits of an appeal, in addition, to any other separately prescribed fees that may be payable but only where we are satisfied that the above criteria has been met.
Where we are satisfied that the preparation reflects time reasonably engaged and is separate to any preparation already included in the fee claimed in respect of the note of appeal or opinion, we may allow a fee for additional preparation.
Where we are not satisfied we must disallow or reduce the claim for preparation and invite you to provide further information in support of the claim.
Where we are satisfied that preparation is payable we must allow preparation at the prescribed rate under Paragraph 11B.
Paragraph 11B of the notes on the operation states:
“The additional fee shall be calculated by dividing the time allowed for additional preparation in terms of paragraph 11A above into units of 8 hours, each unit payable at the rate of two thirds of the prescribed fee or the fee deemed appropriate within the range of fees in Chapter 1 or 2 of Part II of the Table of Fees”.
Where we are satisfied that preparation is payable under regulation 10ZA(2), we must allow each 8 hour unit of preparation at two thirds of the prescribed fee or the fee within the range payable under paragraph 3, 4 or 6 that would have been payable had the case proceeded to appeal.