Institute of Barristers' Clerks: News

Minutes of a meeting with the List Officer at Lewes Crown Court

Mon, 30 Jun 2008 10:15:00 GMT

List Officer And Barristers' Clerks Meeting

MINUTES

Wednesday 14^th May 2008

Those Present

Melanie Kill                                  Lewes Crown Court List Officer
Gary Brown                                  15 New Bridge Street (Chair of IBC)
Teresa Shehu                              Eastbourne Chambers
David Bingham                           Crown Office Row in Brighton
Sarah Reynolds                           23 Essex Street
Nicola Cade                                1 KBW
Lisa Ramjarran                            CPS
Jason Britcher                             Westgate Chambers

Estelle Gregory Minute taker

Apologies

Rachelle Syrett 9-12 Bell Yard

GB stated that he hoped that the meeting would give the court and the clerks' mutual appreciation and understanding as to the pressures and strains that both sets of individuals are under.

GB stressed that unnecessary listings of mentions should be avoided wherever possible, MK agreed that this was also the court's objective and the majority of mentions are for trial readiness as certificates are not received.

The meeting agreed that the clerks to counsel would contact the case progression officer on Wednesdays for trials fixed on Monday to make sure that the certificates of trial readiness had been received by the court, if the certificate had not been reached the clerk would then contact their solicitor/CPS to expedite matters to avoid a mention.

ACTION

Clerks to e-mail or telephone case progression regarding certificates of readiness (Case progression can be e-mailed on case.progression@lewes.crowncourt.gsi.gov.uk or telephone on 01273 485207)

MK stated that changes to the lists after about half three can cause difficulties as this is when prison custody office staff start going home, and the court's internal courier starts preparing to depart around that time.

MK explained that the certificates of readiness system did not apply to warned list cases, where a letter asking solicitors if the case is ready is sent out. MK informed the meeting that the judges have increased the number in the weekly warn list to twenty and that many of the cases will have restrictions or requests marked. MK told the meeting that if she gets to the stage where she has a choice between an empty court room or using a case that she has been asked not to use then she will obviously have to use that case.

GB agrees and says that, that is understandable

GB asked if case progression and judges understand that we are under this pressure to keep case ownership principles in mind which starts at PCMH effectively so we should where possible.

MK responded that the resident judge has instructed her to help chambers where ever possible, MK informed the meeting that she cannot speak on behalf of all the judiciary but follows the directions of HHJ Brown DL. (Resident Judge Lewes Crown Court).

MK informed the meeting that there was recently a major problem concerning lists with custody cases for a few weeks due to the Hove cells being too full to receive custody cases or sentences where there was a likelihood of custody.

MK states that if the list office cannot take into consideration the request as to location they do try and accommodate in other areas as much as they can for instance staggering the list.

Following a query from GB on policy regarding moving pcmhs administratively, MK confirmed that a contact name at the CPS is needed prior to moving at defence request due problems in the past.

JB stated that he felt the listing of PCMHs generally work well

MK stated that there is only a problem if it is a very serious case or if it is one of the cases that the criminal justice agencies are targeting for instance PYOs (Persistent Young Offenders).

JB asks if it still the policy that it takes anything over five days to get a fixture.

MK says that they generally will be willing to fix these unless for some reason the judge has decided to warn.

GB informed the meeting of the difficulties encountered when a fixture is not listed on the day it is due to start and starts later in the week. GB questioned as to how this can be avoided as it is very difficult with fixtures particularly.

GB states that he can understand with a warn list as that is the nature of it, coming in on short notice facing the chance of it not getting on at all, but when a case is fixed on a Monday and then only starts on the Tuesday or not at all. GB adds that this is very problematic.

MK stated that if she is unable to get a fixture in on a Monday she will then try to get it in on the Tuesday following consultation with judiciary and parties.

JB asked that if anything with a time estimate of five plus days in the warned list and there hasn't been good reasons as to why it hasn't been fixed can we then get onto you to try and get a fixture and to liaise with prosecution to find out why. MK agreed within reason.

MK told the meeting that trials go through three warn lists, MK added that two or three years ago it used to be 2 but now because of the backlog it is three and that the court is waning cases for July. MK agreed to chambers sending in availability on warned listed cases that are not reached by e-mail to listing@lewes.crowncourt.gsi.gov.uk. LR told the meeting that HCA's availability is not considered. MK confirmed that custody cases are still rolled over into the next warned list if not reached and that custody cases take priority in the warned lists in addition to those cases that the Judiciary has stated should take priority

JB stated that he felt that communication is a problem with the Lewes combined court with listing, especially with the new telephone system that has come in. "It is a real problem trying to contact the correct person/department". JB adds that the email system works however there are occasions where you do need that facility to be able to pick up the phone and get an answer there and then.

ACTION

MK to send out guide to the new telephone system with the minutes to this meeting

GB states from the clerks' point of view everyone needs to try and avoid needless phone calls. Call only to be made regarding urgent listing enquires.

MK informed the meeting that a draft list will be out at 12.30pm and a final list will go out at 15.30 however very limited alterations can be made to that up to about 4pm but not after that time as the courier would have gone with the files and the custody office at the prison tends to close on the final.

MK commented that the cells asked her to mention that they are concerned as to the number of times they are asked to have defendants in for conference. The cells are under the impression that sometimes if the defendant is lodged at some distance from Sussex, counsel then think it is an easier option to get them to attend rather than visiting the prison.

JB informed the meeting us that the problem is that some prisoners are just "impossible" to try and get a visit to and if you are two weeks coming up to trial and you cannot get a visit on very rare occasions that scenario would crop up. JB adds that this would save court time.

MK said at the moment it is a struggle due to cell space. Between Lewes, Brighton and Hove, each week there are more custodies and those responsible for managing the cells do not feel there is enough cell capacity to hold everyone. At the moment MK is counting all the custodies each day and shuffling everything around in order to accommodate the numbers.

MK explained to the meeting that the witness service do not feel that defence witnesses are getting the same service as the prosecution witnesses. (MK handed out leaflets to all).

MK informed the meeting that the witness service needs to be aware of defence witnesses before the hearings in order for them to help both defence witnesses and prosecution witnesses by having more volunteers in place on those specific days.

MK told the meeting that there is a new person in charge of the taxation section dealing with claims. When the new employee arrived there were 113 outstanding claims and the outstanding figure at the moment is 500, 170 of those are out of target or heading that way. MK adds that Clerks are being taken out of court to help get through the backlog and overtime is being applied for.

SR states that her biggest problem is that they send them off and the system confirms that they have been sent, if the don't keep on top of it, give it a month to 6 weeks and they are told that taxation had never received the claim to begin with.

SR felt that it would be helpful to have some kind of acknowledgement stating that they have been received.GB informed the meeting as to what they have done with some of the courts in London including the filing of forms by electronic means. Then on the sent email you have got that receipt which then cannot be disputed".

ACTION

MK to find out from taxation if we would accept them electronically- the manager of the taxation section asks that this suggestion be reconsidered in 6 months.

MK informed the group that Jane Birchall will be leaving the listing section temporarily in the late summer and as far as listing is concerned there may be some difficulties. MK added that it is likely that a Court Clerk will be covering for Jane.

JB asked who handles what so that everyone does not waste MK's time.

MK responded that bail applications are dealt with be Elspeth Pearse, MK's assistant Jane deals with appeals and custody time limits are dealt with by Sarah Harvey.

GB stated that there were concerns with legal aid. The solicitors are unsure most of the time as to whether they have it or not.

MK stated that case progression assistant doubles as legal aid and post trial. MK adds that this is an agency member of staff.

GB asked if the agency staff member would understand enough to realize the trouble the clerks experience getting information legal aid through the solicitors. GB added that the solicitors tend to think that we do have legal aid most of the time and in actual fact we don't. Then taxation found out that there is no legal aid on file and then there is a snowball effect.

GB asks MK if it is possible for her to find out from the court if all the paperwork and details have been received.

JB reminded the meeting that Lewes Crown is now accepting faxed copies of the legal aid application without it being signed. This is due to the fact that the client is in a prison far away and you are unable to see that client in time. This was agreed a couple of weeks ago.

JB adds that everyone can inform the solicitors to submit the forms prior to the appeal.

Date Of Next Meeting

12 November 2008 (subject to change) at 2pm Lewes Combined Court

Lewes Combined Court - Telephone Enquiries Handout

As you are no doubt aware, Lewes Combined Court has recently had a new telephone system installed. The system was designed to ensure that all enquiries were put through to the correct department. However, we have found that many people are having trouble understanding the system, and are selecting the wrong options from the menu. In the past there have been many calls requesting listing when that was in fact the incorrect section so we would be grateful if you could ensure you make the right selection.

To make things easier for everyone who calls, we have provided a guide that can be kept for ease of reference so that all users are aware of the option numbers they need before they call, and do not therefore have to wait to hear all available options.

To reach the crown court office, press 7. The menu thereafter is as follows:

1 - Interpreter enquiries

2 - Appeals

3 - Legal Aid

4 - Pre-trial including requests for case numbers

5 - Taxation - Graduated fees and Witness claims

6 - Post-trial (including certificates of conviction and curfew orders)

7 - Case Progression

8 - Listing

For information on hearing times and venues on the next day's list, please visit the website http://www.hmcourts-service.gov.uk/ where you will be able to look the information up easily.

We hope that this information is of use to you, and enables you to get through to the correct department every time you call.

Very High Cost Cases (Crime) Contracts

Wed, 26 Mar 2008 15:42:00 GMT

The LSC has issued a review of responses to the consultation on amendments to Panel Contracts.

Please use the link below to view the document.

https://consult.legalservices.gov.uk/inovem/gf2.ti/f/64418/1656645.1/pdf/-/20.%20PostConsultationResponse1.pdf

Revised Protocol for Payment of Fees in the Magistrates' Court

Fri, 8 Feb 2008 16:51:00 GMT

Please click on the link below to view the revised Protocol for Payment of Fees in the Magistrates' Court.

http://www.barcouncil.org.uk/news/latest/143.html

Very High Cost Criminal Cases: the future

Wed, 6 Feb 2008 09:53:00 GMT

The LSC and Ministry of Justice issued a press release on Tuesday 5th February on the future of VHCCs. Please use the link below to read the full text.

http://www.legalservices.gov.uk/aboutus/press_releases_7721.asp

Revised Advocates Graduated Fee Scheme Payment Protocol - Frequently Asked Questions

Tue, 29 Jan 2008 09:47:00 GMT

The Bar Council has issued updated FAQ's on the Graduated Fee Scheme on 28 January 2008 with the following new FAQs: A16-19, C6-8.

Please see the link below.

FAQ's Revised Criminal Graduated Fee Scheme for Advocates 2007

Tue, 11 Sep 2007 16:27:00 GMT

In May this year Gary Brown and Dale Jones travelled around the country giving training to Clerks on the Revised Graduated Fee Scheme, they did not profess to know all the answers but felt confident that they would know most.

Their aim was to encourage discussion with a view to sharing information across our membership. Those questions that Gary or Dale could not answer were referred to the Carter Review Team at the Bar Council for clarification and added to questions that they had received from members of the Bar, the results of which are now published in this document.

We would urge all Clerks to continue to share problems and knowledge relating to this scheme by sending further questions to Carol Harris at the IBC who will refer them accordingly.

We hope that the FAQ section of our website will develop over time and become a useful tool for all Clerks.

1. What fee is payable if a defendant fails to attend at some point during the proceedings?
This depends on the type of hearing: If a trial = £150 for a Junior as a bolt-on payment (see para 13 of Schedule 1 of the Funding Order) and for others = a standard appearance fee (see definition (d) of "standard appearance" at Schedule 1, para 1).

2. If, a few days before trial we advise on 2 counsel but are granted QC only what happens?
As at present, the junior will not get the Basic Fee because he/she will no longer be instructed for the main hearing. This situation is not specifically covered by the Protocol, but is analogous to that in para 39 therein. Thus, the junior should look to the QC to pay any Paid Retained Work or Paid Returned Work undertaken by the junior (or by any Substitute Advocate on his/her behalf). It is an unlikely scenario in practice.

3. Is the chambers fee account mandatory?
No. It is a strongly recommended practical solution to the different challenges thrown up by the arrangements under the new Advocates Graduated Fees Scheme. The chambers fee account is a way of ring-fencing payments made under this scheme. This separation has to be clear because for the first time a proportion of any cheques coming into chambers in the name of the Instructed Advocate could be destined for another advocate, possibly even to an advocate outside of your chambers.

4. Why does Annex E Chambers Fee Account still oblige chambers to inform all paymasters (HMPMG, CPS, LSC, HMCS, etc) of its intention to create a dedicated fee account when this applies only, albeit at moment, to defence fees?
At the moment, the new arrangements apply only to criminal defence work. However, it is anticipated that the CPS will follow suit in the future and the timing for the achievement of parity is being investigated.

5. In a chambers doing mixed work, does the chambers fee account only apply to criminal defence work or should all fees be dealt with via this new account?
This is a decision for chambers. Some sets, who practise predominantly in crime, may make the chambers fee account applicable to all its work. Others, conducting a variety of work, may decide to apply the account only to criminal defence fees.

6. If a chambers doing mixed work decides that all fees should be dealt with via the new chambers fee account and the constitution is amended accordingly, if an individual tenant does not agree, presumably s/he must leave chambers?
This is a matter for the chambers constitution. However, if the constitution is amended and a member does not agree to be bound by it then, presumably, it would be difficult for him/her to remain a member of those chambers.

7. In the reclassification of offences in the Funding Order, possession of photos of a child is included contrary to the Protection of Children Act 1978 but not the Criminal Justice Act 1988 yet this is the same offence - why is this? Could it cause charging problems?
They are not the same offences. The 1978 Act concerns the making/taking of indecent photographs, or possession with intent to distribute. It is a Class J offence. The 1988 Act concerns "simple" possession of such photographs. Originally, the latter was a summary only offence but amended in 2000 to be triable either-way. It does not appear in the Table of Offences (an oversight) and therefore it goes into the default Class H. However, it is possible to apply to the appropriate officer under Schedule 1, para 3(2) for a re-classification, e.g. to J.

8. Can interest be charged by an SA on fees outstanding beyond 3 months by the IA, particularly where the IA is a solicitor?
Yes; at the rate specified under the "Terms of Work" at Annex G1 of the Code of Conduct.

9. How do you inform the court of your withdrawal from a case?
This is still awaiting confirmation from MoJ but it is our clear understanding that notification to the courts of the appointment and withdrawal of Instructed Advocates can be done by clerks by email and letter on behalf of their barristers. If the latter, there is no need for the barrister's signatures.

10. If a chambers has a fees account with largely the same attributes of the recommended chambers fee account, will that suffice?
The chambers fee account model is strongly recommended but not mandatory. If chambers have a communal fee accounting system in place which allows fees for returned work to be paid to other advocates and chambers is confident that it fulfils the various requirements, then there is probably little else that could be expected from chambers.

11. What if an SA wishes to appeal his fees and the IA does not think that he has a case and the appeal is therefore pointless - must the IA appeal?
On a strict interpretation of the Funding Order (Article 29(1)(b)) it is the Instructed Advocate who must be "dissatisfied" with the fees. However paragraph 24 of the Protocol implies a duty on the IA to bring an appeal on the SA's behalf, irrespective of the former's view of the merits. The SA is required to produce all written material required (paragraph 25) and will be liable for any fees or costs incurred in the re-determination.

12. Does the Basic Fee cover the first 2 days of the trial?
Yes: see the definition of "d" under Schedule 1, Part 2, para 4 of the Funding Order.

13. How is IR 35 affected by the new arrangements?
The new arrangements are not affected by IR35. It was introduced by HMRC a few years ago to combat a perceived loss of revenue. It had become common (particularly in the IT industry) for individuals to set up a limited company to take on a contract which was effectively an employment. This Ltd Company received the income from the contractor and then paid this out to the individual often in the form of a dividend. The contractor benefited from not being liable to employers national insurance. The sub-contractor benefited from not being liable to the employees contribution by taking a dividend. Furthermore expenses, often travel from home to office, could be claimed by the company thus reducing the tax burden. These expenses not normally being allowable for an employee. IR 35 refers to regulations which set out a procedure that companies falling within this type of scenario have to follow. The result of which means that PAYE is imposed on the company even if no salaries are paid. Typically IR 35 applies to limited companies but the rule in fact applies to any intermediary so can apply to partnerships and unincorporated organisations but not sole traders/practitioners. Unfortunately the term IR35 has become confused and is often applied to any circumstance where there is a doubt over the self-employed/employed status of an individual. IR35 or any questions of employment do not, in our view, apply in any way to the fees protocol and fee sharing. Barristers are self-employed. The manner in which fees are paid cannot alter that fact. The reference to the substitute advocate as being a sub-contractor should not cause advocates to jump to the wrong conclusion. The only other possible concern may be that Chambers acts as a form of agent by collecting fees and subsequently paying out those fees to the barristers. However the act of collecting fees does not alter the relationship between the barrister and his/her client which is one of self-employment and thus provided chambers is purely a conduit, there should not be any problem.

14. Chambers Constitution. Our constitution provides for amendments to its terms upon a 75% majority vote. The model "enabling provision" on page 27 is split into three parts a) b) and c). Is the subject matter of each part mandatory? In the event of the vote for amendment on any of the three parts not being carried, what is the sanction against chambers for non-implementation of the "enabling provision?
The model "enabling provision" is simply a recommended draft of that part constitution taken from an actual chambers constitution making it a tried and tested version that others may wish to adopt. There is no sanction against chambers not adopting this draft. It is worth bearing in mind that if chambers cannot agree to amending the constitution to allow for the creation of a chambers fee account, then there may be difficulties with the banks in setting up the account as the banks require sight of an amended constitution before set-up.

15. Page 27 "Steps" Each member of chambers has to "sign to show consent" for the constitution enabling provision. Does this mean each and every member of chambers or just members of the criminal team?
All members of chambers who will be paid through the chambers fees account will need to sign the amendment to the constitution. As said above, chambers' banks will demand sight of the appropriate change to the constitution indicating the agreement of members to these arrangements.

16. Page 27 "Steps" Each member must supply his / her bank account details to the administrator of the fee account. Does this mean each and every member or just the criminal team?
See above.
If some refuse, what is the sanction (i) against those members (ii) against chambers?
See above.

17. If the scheme is only a recommendation and not mandatory, cannot we apply the system for adjusting payments between barristers which is contained in the Code of Conduct at 406.1 and which is repeated in the Protocol at page 9?
The Code of Conduct is not a substitute for any new process; it is simply a professional obligation of all barristers which has not been changed in any way by the introduction of the Protocol. The Protocol is the recommended new process.

18. Overall, if chambers does not set up a fee account in accordance with the protocol and/or does not implement the three-part wording of the "enabling provision," what sanction would be applied to chambers as a whole for its failure?
There is no sanction applied to chambers for not working in accordance with the Protocol. However, if the majority of chambers do not operate in a consistent and disciplined way in accordance with the Protocol, it is almost certain that there will be difficulties in doing business with other chambers, more problems between advocates and the resulting lack of consistency can only lend weight to the LSC's professed desire to move swiftly to "One Case, One Fee" (where the fee for the whole case is paid to the solicitor) and best value tendering.

19. Paragraph 23 of the new Funding Order has plainly been lifted from the old order without consideration. This measure was introduced when junior alone fees were substantially less than half leader's fees (save for Category A where they were exactly half), in order that where a junior appeared alone in a case where a leader appeared on the same charge he would not receive substantially less than the led junior who would receive half the leader's fee. However, under the new fee regime the junior alone fees are more than half in some instances - Cats. A,B,D,J (with a modest number of pages) and G and K (in every case). Surely, in fairness, this provision should allow for the junior alone to opt for whichever is the higher fee calculated from the led junior and junior alone tables?
An unfair anomaly that will be raised with the MoJ, particularly given the financial saving by having one advocate rather than two.

20. Does an Advocate still get paid an unattended advocate fee of £38.50 per day where Solicitors have been granted a certificate of attendance but choose not to send a representative?
No, this bolt-on no longer exists.

23. Does the Terms of Work letter (Annex D) have to be sent by the Instructed Advocate or can it be sent by the Clerk to Chambers?
This can be sent by the clerk to chambers, acting on behalf of the barrister to whom the instructions have been sent.

24. Why does the Annex D letter have to be sent to all solicitors when it seems to only apply to solicitors who intend to receive Instructed Advocate payments?
The letter has to be sent in order to bind both barristers and solicitors to the terms of the Protocol.

25. Example 7 of the Depleted Basic Fees in the CBA Guidance refers to 5 mentions however, the Funding Order says only 4 standard appearances by the trial advocate or substitute advocate, is included within the basic fee. Please confirm.
The Basic Fee only covers the first 4 standard appearance fees. The fifth and subsequent standard appearances are paid separately as bolt-ons.

26. Does the scheme apply to Dock Briefs? If so how should it be claimed?
As far as we are aware, there has been no change to the way in which dock briefs are to be claimed. There was no suggestion in the discussions with Government over the new Funding Order that there has been any alteration to the present system.

27. How do advocates get paid under the new scheme for cases in which the Representation Order is transferred from one firm to another and their services are no longer required?
A trial advocate may claim wasted preparation where he/she has been dismissed by the defendant or his solicitor: Schedule 1, paragraph 15(1)(d) of the Funding Order, subject to 15(2) and (3).

28. To which department at the Crown Court should the notification of the IA be sent; Case Progression, Listing, Court Manager or someone else?This is yet to be clarified with the MoJ/HMCS and will be part of the training for court staff being rolled out from mid-June.

29. What happens if work is done on a case for which payment would be included in the basic fee if a Bench Warrant was issued and either not executed for some years or not at all?
This is a problem. The trial advocate in this situation is now in a worse position than under the previous Funding order, for two reasons: first, the fixed fee payable when the bench warrant has not been executed after three months has now gone; secondly, the discrete bolt-ons for pre-trial conferences, tapes, mentions etc have now been absorbed into the Basic Fee, which is only payable when there is a "main hearing" in the case.

30. Does the fee for a section 51 preliminary hearing at the Crown Court (also known as a Narey hearing) come out of the Basic Fee? If so, what is that fee and to whom is it payable?
No separate fee is payable; it comes out of the Basic Fee, whether it is conducted by a barrister or a solicitor. It is not a "standard appearance" as defined by the Funding Order, so the fee is not covered by Table A of the Protocol and therefore there is no prescribed fee. We have queried the Ministry of Justice's view that if the hearing is conducted by a non-HCA solicitor then his/her fee would also come out of the Basic Fee.

31. Does Annex B (PCMH fees) apply to every PCMH/PTR in a case?
There can only be one Table B PCMH fee (or value) in any case. That will be paid for the first, effective PCMH. All other PCMHs or PTRs (whether effective or not) will be "standard appearances".

32. On a transfer of legal aid from one firm to another, is the RGFS slate wiped clean and your newly instructed counsel starts afresh, or does the accumulation of the attendances run on even with a new firm and counsel taking over?
The number of attendances runs on, as opposed to starting afresh. It is, for AGFS purposes, the same Representation Order- albeit transferred. Although it is unlikely to be construed any other way, the point was never specifically addressed during the negotiations.

New Guidance on Fees Contracting Postponed Until Oct 2008

Mon, 3 Sep 2007 16:20:00 GMT

The Bar Council has postponed the introduction of the updated fee contract guidance until October 2008, reports the The Lawyer.