Having a Pop

Following on from the earlier entry on the LSC's approach to assessment of expert's fees (http://kjccosts.blogspot.co.uk/2012/10/lsc-approach-to-assessment-of-experts.html), in which to paraphrase we ended up effectively getting £24 per hour for a massively experienced clin neg specialist doing a very diligent job, we decided to take the next step up the slightly wobbly LSC appellate step-ladder. Oh what naive fools!

I am sure that the good old Legal Aid Board at some point back in the 80s or 90s had a "Crystal Mark" from the Plain English Campaign. I may be wrong. Certainly the colour coded certificates were quite straight forward. Anyway, as far as I can tell the LSC is no longer a holder. Here, perhaps, is why....

The Appeal is not an Appeal. It is not a Review.

It is an "Application to certify a Point of Principle of General Importance" or, a "PoP". 

But what is a POP you ask? POPs are "statements which seek to clarify a costs assessment principle or interpret a contractual assessment provision". Obviously. With me so far? Good. Keep up.

And the procedure is thus, as described in the Focus magazine from August 2005 -

"If you are unhappy with the decision of a Costs Committee then you can, within 21 days, apply to another Costs Committee for certification of a POP. This is effectively the permission stage and even if  the Costs Committee certify the POP it has no effect on the underlying assessment nor is it binding under the Contract. In order for the POP to have effect it has to be certified by the Costs Appeals Committee"

So, Think of Committe 1 as a "Popstop" (they really should have consulted me about the descriptions!). If Committee 1 certify your POP they do not do the obvious and decent thing and pass it on to Committee 2 themselves. You get 21 days in which to possibly forget to do that, and you must invite Committee 2 to certify it for a second time. I suspect that if you do not meet the time limits you remain for ever in a limbo. Your pop is half way there but has no teeth. Like Coldplay.

And of course the Committee may or may not certify. You could find yourself with a popflop.

Successful POPs will appear in the POP manual, the latest edition of which is available here - http://legalservices.gov.uk/docs/cls_main/point-of-_principle-manual.pdf. All 154 fun pages of it.

Curiously POP CLA15, which is now nearly 17 years old, seems to pretty much cover the point that we are raising here. It says that if you get prior authority for a disbursement , that does not place a ceiling on the fee. Even if the amount eventually paid out is more, it can be allowed as long as it is reasonable. And that really just emphasises the regulations, which say that (apart from in terms of instructing Leading Counsel) prior authority really has no effect on assessment. If the disbursement is reasonable it should be allowed in any event.

So, to back track to the circumstances of this particular appeal (I refuse to do any more pops), our experts' fees were reduced on grounds that "they had not been subjected to the scrutiny of the prior authority procedure". That does not sit well with CLA15 or with the regulations.

Our proposed points of principle are as follows - 

POP1

Failure to obtain prior authority under regulation 60 or 61 CLA(G)R 1989  is not a factor that should be taken into account on assessment in determining the reasonableness of the fee, either as to principle or as to quantum; if the fee was reasonably incurred and is reasonable in amount it should be allowed whether or not prior authority was sought.

POP2

Where (in a case to which prescribed experts’ rates does not apply) an appropriately qualified expert is instructed and in all other respects his fee appears reasonable, failure to approach similar experts for a fee comparison is not a factor that should be taken into account on assessment in determining the reasonableness of the fee, either as to principle or as to quantum; if the fee was reasonably incurred and is reasonable in amount it should be allowed whether or not any comparator quotes were obtained.

Both appear to me to be reasonable. Bearing in mind that POP1 really just re-states what the rules have said since 1989 I would hope it will not cause controversy.

You have to wonder though whether this system, in which by the way there are no provisions whatsoever for recovering your appeal costs, and which seems to be specially designed to sap the will to proceed in cases that are already making massive losses, really is giving any real incentive for good lawyers to provide proper access to justice.