Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence


Memorandum submitted by J Christopher Napier, Master (Taxing Office), Supreme Court of Judicature of Northern Ireland


  1.1  It is important in all aspects of legal aid reform to bear in mind that the Northern Ireland context of legal services is not and has never been similar to that in England and Wales, that:

    —  legal aid services in Northern Ireland were not introduced until 1965, as compared to 1949 in England and Wales. For 16 years this valuable welfare service was not available to the citizens in Northern Ireland;

    —  in Northern Ireland a 5 per cent deduction from solicitors and barristers' remuneration is retained by the Legal Aid Department in all High Court civil cases while a similar percentage deduction was abolished long ago in England and Wales.

  1.2  A slow rather than a rapid change is justified in these circumstances and local considerations require a Northern Ireland solution to a Northern Ireland problem and step-by-step shadowing of legislation in England and Wales is not appropriate without the necessary modifications.



  2.1  The main thrust of the administrative arrangements in the Command paper is to introduce a new Legal Services Commission for Northern Ireland, a move with which I entirely agree and which I supported in my Response to the Consultation paper "Public Benefit and the Public Purse".



  3.1  While I understand completely the need for the budgetary controls sought, I have difficulty with some aspects of the proposals. I have long supported the idea of a wide range of fixed as well as standard fees being available in both civil, family and criminal matters for both solicitors and barristers.

  3.2  I see as part of the problem with the existing service the fact that once legal aid is obtained, there is at the moment no curb of proportionality. As Mr Justice Girvan said in a recent judgment.[2]

    A further principle requires to be stated. It is easy perhaps with the benefit of hindsight to conclude that certain steps taken were not in the event required. That approach must not be taken. Rather the person coming to the file after the event should adopt the view that a solicitor faced with the preparation of his or her client's case will by necessity need to examine every proper avenue of enquiry to protect and enhance his client's interest. It would be inappropriate to second-guess the decisions made in such circumstances save those that any reasonable person would have seen as not justifiable.

  In other words the test of proportionality, comparison with the preparation times of the solicitors or counsel in similar cases, should not be applied under the existing law, at least in civil cases. This often gives rise to the preparation of cases in a manner which provides a Rolls-Royce service where a Ford Popular service would reasonably suffice.

  3.3  In my response to the Consultation Paper[3] I tried to deal with the reasons which I see as being behind the expansion of the Legal Aid budget at the moment. The best solution to the problem of budgetary control is to my mind that set out by me in my response at Page 16 thereof. It is based on the controls in force in the world of insurance.

  Budgetary control is not limited to the introduction of scales of costs. Care must be taken not to confuse the two types of scales of costs which I have discussed in the response, namely roundabouts-and-swings scales and standard, fixed or measured scales of costs.

  The introduction of scales of standard costs, either in civil or criminal legal aid cases, will not eliminate the problem of budgetary control. It is neither fair, reasonable nor just to have a stringent type of standard scale, verging on a swings-and-roundabouts type of scale, with exceptionality as set out in paras 64-66 of the Command Paper.

  These are two conflicting principles, either (a) roundabouts and swings scales of costs or (b) standard scales of costs, with the right to opt, in exceptional cases, for fees to be assessed in the individual case.

  In roundabouts and swings scales the practitioner takes the rough with the smooth, conscious that in some cases he will receive more than he ought strictly to receive, and that in others, to compensate, as it were, he will receive less. All-in-all, over a period of time, fair remuneration will be received, but in any individual case that is unlikely to be the case. An example of these is the County Court scale of costs.

  Standard fees ought to be cast so as to effect, as far as possible, fair remuneration in the broad run of cases, and it is for the practitioner to ask for non-standard assessment if the practitioner feels that the case is outside the broad run of such cases. If the criteria for exceptionality are too high, one is faced with the equivalent of the roundabouts-and-swings scales, where, to succeed, the level of remuneration must be cast similar to the present County Court scales.

  To my mind, to create such a scale for run-of-the-mill High Court damages litigation would, were one to use the criteria on which the County Court scales were set, create an increase in the annual expenditure for Legal Aid, in place of any reduction. Albeit, that increased expenditure would be controlled.

  The present County Court scales only work because they are highly remunerative for the legal profession in the majority of cases, and yet, because of the size of the individual case claims for costs and the small number of cases were the profession runs at a loss, the overall budget for the Legal Aid Fund in this regard is acceptable.

  The legal profession is pleased with the general performance of the County Court scales of costs. Were this scale to be expanded into the High Court area, while the profession might be well-pleased, the taxpayer might well have reason to complain that the lawyers were being excessively remunerated!

  In standard fees cases there are of necessity some smaller cases where the remuneration is more than generous. An example of standard costs scales is the present standard costs in criminal matters.

  It is important to bear in mind the difference between these two kinds of scales of costs. I feel that the authors of the Consultation Paper "Public Benefit and the Public Purse" failed to grasp this distinction.

  In the area of exceptional cases it is to be left to the Taxing Master to decide the level of fair remuneration, with, presumably appeal by review by a judge. Clarification will be required, as I mentioned earlier, in the area of proportionality.

  Fixed costs are like standard costs, creating a generally acceptable overall fair level of remuneration, but not necessarily fair remuneration in any particular case. Wider use of fixed costs in matrimonial causes is not only justifiable but would produce immediate savings in costs and administrative time—see my memorandum to the Legal Aid Advisory Committee dated 30 May 1990.[4]

  Measured Costs do not receive mention in the Command Paper yet have in my opinion, a valuable part to play in the proper management of legal aid. This is the system by which the judge at the conclusion of routine cases in making an order for costs will indicate the sum of costs which s/he feels appropriate and only if the practitioner is unwilling to accept the sum will order a taxation of the costs.


  3.4  The Government proposes to introduce the Funding Code. It will require skill to ensure that both the merits of applications and the timescale within which they are progressed are managed efficiently. My proposals for shadowing the manner in which such cases are managed in the insurance industry might be of assistance.

  A time-related withdrawal of assistance in cases not progressed with sufficient expedition might be appropriate.


  3.5  The engagement of salaried lawyers in both civil and criminal cases is worth considering as suggested by the Paper. How do the Government propose to deal with same? Have they considered the cost implications or the extent to which a salaried defender or other salaried public lawyer might be used? In a small jurisdiction like Northern Ireland I would doubt if such employment would be cost-effective.

  However, in the peculiar circumstances of Northern Ireland consideration has to be given to the questions of fairness and absence of bias, given the small pool of lawyers and litigants here, and the divided society in which we live.

  The steps to introduce such lawyers in criminal cases as salaried defenders in England and Wales is presently under consideration, and the Northern Ireland Legal Aid Advisory Committee—of which I am a member—has addressed its concerns on the matter to the consultants in England and Wales.


  3.6  The whole area of Conditional Fee Agreements (CFAs) and Contingency Legal Aid Fund (CLAFs) is fraught with doubt and misunderstandings. One has only to refer to the two articles, printed side by side, in The Times of 20 January 2001, to see the potential for confusion as Edward Garnier, MP, Shadow Attorney General and David Lock, MP, Parliamentary Secretary in the Lord Chancellor's Department, compete for votes on the reform of the legal aid code.

  Widespread doubt was cast on CFAs in Northern Ireland by all respondents to the Consultation Paper—paragraph 33 of the Command Paper.

  One must await the outcome of the committee recently appointed to report to the Lord Chancellor on the feasibility of CLAFs in Northern Ireland, but I feel that Northern Ireland is too small an area for CLAFs to be other than legal aid by the back door, with an ever increasing budget required to balance its books.


  3.7  In the area of criminal legal aid, the absence of a financial test does give rise to some criticism. Once legal aid has been granted by the judge or magistrate in court,[5] there is no mechanism to curtail it in any way, even though either the means or the merits of the defendant may have changed.

  Recovery of Defence Costs Orders are to my mind of limited value only, and are too inflexible to be efficient in the regulation of criminal legal aid and in the public confidence in the fairness thereof.

  3.8  I have long advocated a system whereby arrangements for the conditional grant of legal aid should be comparable in criminal cases to the emergency grant of legal aid in civil cases. While the 1981 Order is silent on the issue of emergency civil legal aid certificates, power is given by Regulation 11 of the 1965 General Regulations for the issue of same in civil cases.

  3.9  The application form for such an emergency certificate contains an undertaking by the applicant to reimburse the Legal Aid Department of the Law Society of Northern Ireland for all monies paid by them to the lawyers involved in the event of a full certificate being refused on financial or other grounds, although there appears to be no statutory authority for the Law Society demanding such an undertaking.

  3.10  Practitioners whose clients obtain an emergency civil legal aid certificate are remunerated out of the Legal Aid fund for any work done on foot of the emergency certificate and during its currency. It is for the Legal Aid Department to seek reimbursement in the event of a full legal aid certificate not being issued on financial grounds, or for any other valid reason. This sum is recovered by the Legal Aid Department as a civil debt.

  3.11  I foresee that an analogous system might easily and economically be introduced into the criminal legal aid system by the introduction of general regulations to govern criminal legal aid similar to the 1965 General Regulations governing civil legal aid. Regulation 41 of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 shows that such a system appears to work well in the neighbouring jurisdiction.

  3.12  I feel that this opportunity to bring such an interim stage into the criminal legal aid certification process would not only be in the interests of justice and the access thereto of persons charged before the criminal courts, but also give rise to saving considerable funds to the Legal Aid Department in respect of those defendants who, while apparently wealthy, can show superficially that they are indigent. Public confidence in the fairness of the scheme would be strengthened.

  3.13  I am a little concerned that none of the proposals suggested by the Legal Aid Advisory Committee[6] annexed as Appendix 12 to their Report to the Lord Chancellor on the Legal Aid Annual Report for 1994-95 (Cmn 470) has yet been considered in spite of the obvious savings in time and money which they will bring into the existing system.



  4.1  Legal aid services as a welfare benefit at the public expense are required to be of a high and consistent quality. For too long the system of legal aid in Northern Ireland was administered without any regard to either standards of quality or avoidance of fraud. These matters require to be taken in hand as soon as possible.

  There ought to be some effort made by the Legal Aid Department, or new Legal Services Commission, to investigate and report on the level of public or private belief in the alleged lack of quality of the delivery of legal aid services by the legal profession in Northern Ireland.


  4.2  The elimination of fraud is the responsibility of the Legal Aid Department or the new Legal Services Commission and the present computer programmes of the Legal Aid Department will hopefully go a long way towards the identification and elimination of any existing fraudulent use of the Green Form Scheme or other abuses of the legal aid scheme in general. The absence of any statistical information leaves one dependent on anecdotal information, which cannot be reliable. Furthermore, there is unease generally with the monitoring of the issue of criminal legal aid certificates and the information on which these are granted by the courts.


  4.3  As the Master taxing or certifying costs in Northern Ireland for over ten years now I am conscious, in an anecdotal way, of the increase in preparation times claimed for the defence of criminals since the introduction of the Criminal Costs Rules on 1 January 1993. Likewise I have seen a huge growth in the hours preparation claimed in relation to the civil claims since the present Rules of Court were introduced in 1988.

  This may reflect a general slowing in average reading speeds, or a less careful recording of preparation times, a less urgent approach to the task or indeed, an overall increase in the perceived reasonable and necessary preparation of each case.

  Against this background the failure of the judges on appeals from the Taxing Master to support the idea that there is a rate for the job, a hypothetical reasonable length of time, as extracted from other taxed cases, which the hypothetical average solicitor might reasonably spend in the preparation of any case of that particular type seems to me to mean that legislation must define the proportionality applicable to the costs to be incurred in each kind of case.



  5.1  The following solution is neither a take-it-or-leave-it solution nor, probably, the last word on the modification of the present situation in the circumstances. I would be happy to discuss variations or modifications thereof with those responsible in due course.

  The drawback with many scales of costs is the work involved by the need to update them regularly.


  5.2  The move to the establishment of the Northern Ireland Legal Service Commission (LSC) to proceed apace. The transfer of functions to take place as soon as possible.

  The proposed three budgets to be established within the Legal Aid Department, one for civil non-family, one for civil family and the third for criminal legal aid. The Legal Aid Department should work now on the basis of demand but monitor costs on the basis set out in the Command Paper so that analysis will be available to the new LSC when established.

  The legal aid legislation to be amended to introduce the concept of proportionality in all cases where legal assistance of any kind is involved.

  The concept of civil legal aid certificates, limited to a specific amount of costs and outlays (which must not be exceeded without authority from the Legal Aid Department/LSC), to be introduced gradually in place of the system of limited certificates presently in use. This is of particular relevance in relation to clinical negligence and other high-cost cases.

  The legal aid legislation to be amended to provide for greater facility for non-assisted successful litigants to have an order for costs against the Legal Aid Fund. The existing 5 per cent retention in High Court costs to be retained against this liability.

  The fixed costs provided in Rule 9 of the Matrimonial Causes (Costs) Rules (Northern Ireland) 1981[7] (as amended by the Matrimonial Causes (Costs) (Amendment) Rules (Northern Ireland) 1989[8]) to be amended immediately to provide a fair average figure for solicitors' costs and counsel's fees. (My staff can quickly extract the relevant figures from taxed bills of costs to provide an attractive and fair figure which will result in immediate savings of costs and time for the Legal Aid Department.)

  The immediate implementation of the preferred option, Option One, of Appendix 12 referred to above[9] in relation to criminal legal aid. This will replace the existing Appropriate Authority by the Legal Aid Department and the LSC, reduce the number of appeals etc.

  The immediate introduction of a system of emergency criminal legal aid certificates, followed by full certificates where necessary, with the right of the Legal Aid Department or LSC or the judge to discharge or revoke the same just as a civil certificate can be discharged or revoked for good reason.


  5.3  In civil family cases, the development of scales of costs for ancillary relief cases, based on the value of the assets effectively transferred from one party to the other. These scales should not reflect complexity, rather the actual value of the assets, the transfer of which is achieved. This will act as an incentive to early and reasonable settlement in small cases and the restriction of excessive adjournments—(presently at a disgraceful level, in my opinion)—the prompt access to discoverable documents and the avoidance of lengthy and unproductive applications and hearings. This scale should be a roundabouts-and-swings scale with no access to taxation unless the master/judge, at the conclusion of the hearing of the matter, shall so certify.

  The development of scales of costs, (small, medium and large), in Children's Order cases, including child abduction cases, based on a standard fee which is the average cost of preparation relative to the sort of issues (sexual abuse, physical abuse, freedom for adoption, return to country of origin etc) and should specify the size of papers which takes the case outside of the standard category. The actual category will always be the first (small) category save where the master/judge at the trial certifies that the case is medium or large. This certification will depend on the actual number of documents required to be considered and the length of any trial.

  In civil non-family cases, the development of a scale of costs, different entirely from the Belfast Solicitors' Association (BSA) scale, where, based on the possible different points of settlement, or conclusion of the case, as in the present BSA scale, and modelled on the present County Court scales with appropriate adjustments in quantum, the value of the money recovered and the nature of the case (personal injury, debt, possession of property, dissolution of partnership, etc), average remuneration for the basic preparation of the case and the actual hearing (first day) would be included. A further scale would provide for a fixed fee for interlocutory applications of various kinds, half and full day refreshers for solicitors and counsel. This scale should be a roundabouts-and-swings scale with no access to taxation unless the master/judge, at the conclusion of the hearing of the matter, shall so certify.

  Clinical negligence and other specified high-cost cases to be governed by special civil legal aid certificates which limit the amount of remuneration to a specific sum for costs and outlays without further authorization, so that the conduct of the case and the funding thereof can be monitored regularly. [In practice there are very few such cases of any value each year].

  In no civil case should the parties be competent to decide or agree as part of the terms of an order into which category, small, medium or large, the case shall fall for legal aid purposes.

  In criminal cases, a scale of standard costs relating to Crown Court cases of various categories, as for example, the categories of cases currently in use by the Legal Aid Department:—

1BConspiracy to Murder
Attempted Murder
2BComplex fraud
3Certain Firearms and Explosives Offences
Serious Sexual Offences
Escape from Custody
Offences Against the Person Act
Others with max penalty of 10+ years
4Criminal Damage
Killing by car
False Imprisonment
Other Arms and Explosive charges
5All others

  A similar scale should be developed to cover cases pleaded and cases fought in the Magistrates' Courts and for County Court appeals.

  These scales would have variations for pleas and fights (first day), for small, medium and large depositions/discovered papers with another scale for interlocutory applications and adjournments, arraignments, and half- and full-day refreshers for solicitors and counsel.

  The standard fee is the average costs of preparation relative to the sort of charge and should specify the size of depositions which takes the case outside of the relevant category. These can be averaged from actual cases dealt with by the Legal Aid Department/LSC in the interval. The actual category will always be the first (small) category save where the judge at the trial certifies that the case is medium or large.

  This certification will to some degree depend on the actual number of documents required to be considered.

  The size of the brief prepared by the solicitors should no longer be a measure of the size of the case, as the tendency has developed to deliver massive briefs to counsel which, instead of summarising the issues for Counsel, in fact expand all the aspects of the case to justify huge preparation times.

  Recovery of Defence Cost Orders can be introduced if still thought effective.

  Criminal appeals likewise would be covered by a sliding scale covering the same factors as the Crown Court scales. The guiding factors here are the nature of the charges, whether appeal is against sentence or against conviction and sentence, the size of the Crown Court transcript and the issue of new evidence, if appropriate.

  These scales should be a roundabouts-and-swings scale, with no access to taxation unless the judge/Court of Appeal, at the conclusion of the hearing of the matter, shall so certify.

  The right of appeal from the order of the judge on the matter of costs and which category of costs shall apply to be appealed in the same manner as any interlocutory order of the judge.


  5.4  The modification of the scales above to reflect fair remuneration in the light of experience and of the appeals therefrom.

  The establishment of CLAFs, (if appropriate), the setting up of salaried lawyers, civil and criminal (if the market still requires), the monitoring of all firms of solicitors and all barristers registered with the LSC as to quality of service, the eradication of fraud by the use of a properly programmed computer to cross-reference all welfare benefits and applications, all previous applications for assistance, and all multiple applications.[10]

5 February 2001

2   In the civil legally aided matrimonial cases of Galway-v-Galway: Carse-v-Carse where he delivered a written (unreported) judgment on 14 December 2000 on the claims of solicitors and counsel appealing my decisions on their costs. Back

3   See the list of unprinted papers, p. xvi. Back

4   Not reported. Back

5   Unlike England and Wales, where the court clerk, as a qualified lawyer, is responsible for the grant or refusal of legal aid. Back

6   I was the author of this Appendix. Back

7   SRNI 1981 No. 196. Back

8   SRNI 1989 No. 217. Back

9   See para 3.13 above. Back

10   As for example, where a solicitor knocks every door in a street where there has been an event, to collect instructions to claim for each householder. Back

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