Costs News

23 January 2020
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News in brief - 23.01.2020

New costs silks

Two well-know costs barristers were among the 114 new QCs announced last week: Jamie Carpenter from Hailsham Chambers and Roger Mallalieu from 4 New Square.

 

Call for urgent exceptional case funding rethink

The process of obtaining exceptional case funding (ECF) – and its role in the wider legal aid system – need “rethinking urgently”, a report from the Public Law Project argued this week.

“It is clear – as The Way Ahead [the Ministry of Justice paper last February on changes to some aspects of legal aid] appears to acknowledge – that the current process design is deterring providers from making applications. Taking meaningful steps to make processes simpler and quicker – and to communicate those changes – is essential.

“The evidence also suggests that wider reflection on the role of ECF in the legal aid system is necessary, including how it fits into the economic environment that legal aid providers find themselves operating within.

“For instance, the evidence we have reviewed prompts serious questions about whether article 8 immigration cases ought to be brought back into scope for legal aid, given the volume of successful applications in the immigration context. There are also questions around whether giving further powers to legal aid providers to grant ECF for controlled work would improve the operation of the scheme, particularly in areas where there is a high demand for ECF and the evidence indicates providers have a good understanding of the criteria for granting ECF.”

The report said such reforms presented an opportunity to remove the “evident disincentives” for applications and lower the Legal Aid Agency’s administrative burden.

The government expected 5,000-7,000 applications per year when it set up the scheme in 2013 but, in the first year, only 1,516 applications were received. This figure went down further over the next two years before peaking in 2018/19 at 3,018 applications.

A survey of legal aid providers reported a range of reasons for not using the scheme, including the risk of not being paid, particularly where resources are stretched and the applications are not cost effective; previous applications being refused; and the application process being off-putting, particularly due to it being time-consuming.

Some 30% of respondents indicated that they used alternative strategies to avoid making ECF applications, including doing the work pro bono.

An overwhelming majority of responses highlighted continuing problems and the need for further improvements on the timeliness of decision-making.

The improvements floated in The Way Ahead – simplifying the process for applying for ECF, improving timeliness and considering a new emergency procedure for urgent matters to access ECF – would make 75% of respondents more likely to make applications.

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