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. 

LSC Approach to assessment of Experts' Fees in Clinical Negligence Cases

My understanding has always been that whether or not prior authority for a disbursement was obtained was immaterial, as long as one could demonstrate the the disbursement was reasonable, in which case it would be allowed in any event.

The LSC are now however taking a different view, as the decision of an "Independent Costs Assessor" [who are these people?] on a recent appeal would appear to demonstrate.

In short, we investigated Mrs.L's treatment in hospital when, following a routine surgical procedure, she suffered a stroke. We instructed a Consultant Neurologist and a Consultant Neuroradiologist, both of whom had been part of a selection recommended by AvMA.

They both reviewed 11 years' worth of medical records and reported on liability and causation, and both spent an hour in conference with Counsel, when sadly it was decided that there was no case to answer.

The aggregate fees (for report and conference) were £1,000 and £1,150  for neurologist and neuroradiologist respectively, both of whom charged a rate of £250 per hour. The overall claim for costs was less than £5,000. So...a good job had been done for a reasonable fee - what could possibly go wrong?

Well the LSC decided that a neurologist is worth £170 per hour and a neuroradiologist £190 per hour. Not that much difference you say, but then on an LSC case with small margins, it is actually the difference between making and losing money. Purely on hourly rate the fees were reduced by £710. Our profit costs......£890. So bearing in mind that we are professionally bound to pay the experts in full, we had actually conducted this case for £180! That works out at slightly more than £12 per hour.

So we took umbrage and appealed.

With a remarkable lack of good grace the LSC's "Independent Costs Assessor" has allowed the appeal in part -

Yes, it was reasonable to instruct these particular experts

Yes, we recognise that they are specialists

Yes, we accept that everything was done economically and we have no criticism of the time spent by the experts........

BUT.....

"I consider, however,that £250 per hour for each of these experts is an excessively high figure where the rate has not been subject to the scrutiny of the prior authority procedure and without indication as to whether other experts were approached for fee estimates"

The experts were in fact allowed at £200 per hour, which means that we only have a £550 shortfall in experts fees and have therefore billed close on £24 per hour for this case, which is about half of what the LSC used to pay when I first started 25 years ago!

Good to see we are taking Access to Justice seriously still!