There has been a case in which a solicitor, in addition to recovering an award of judicial expenses (and, therefore, obtaining payment at a higher fee rate), entered into a private fee arrangement with a client. The justification for doing so was that the solicitor had entered into a speculative fee arrangement with their client, and the private fee related to work carried out before the grant of civil legal aid.
The rationale underlying section 32 is to prevent the supplementation of fees for work done during any period for which civil legal aid is in place. The effect is that a solicitor or counsel providing civil legal aid cannot take any payment in connection with the proceedings, other than in accordance with the 1986 Act, for anything done while civil legal aid is in place. This includes any period during which there was special urgency cover, if civil legal aid was subsequently granted.
Section 32 does not therefore prohibit charging a private fee, whether or not on the basis of a speculative fee arrangement, for work done before the grant of civil legal aid. Acceptance of judicial expenses represents a payment “in accordance with” the 1986 Act.
Whether charging a private fee and/or a fee based on a speculative agreement accords with section 32 must depend on the terms of the agreement itself. For example, the payment may cover work wholly or partly done during the currency of the grant of civil legal aid, thereby amounting to a supplementation of fees and breaching section 32.
If you have a speculative fee arrangement with a person who is or was an assisted person in the proceedings, in terms of which they have to pay you, you must give us details of the agreement including information as to what work you have charged for and the period or stages of the case for which you are charging. You can include this in the account synopsis.
Where, instead of accepting judicial expenses, you send us a legal aid account and you charge a private fee for work done before the grant of legal aid, whether under a speculative agreement or otherwise, again issues of duplication and possible breach of section 32 may arise.
Given that the initial block payments in the civil legal aid fees regulations deal with instruction and progress there may be an overlap with the private fee. You must, therefore, give us details of any such private fee, including what work you have charged for and the period or stages of the case for which you are charging. Again, you can include this in the account synopsis.