Part 2 looks at payment terms and at chasing and collecting outstanding fees.
You can read more about this at the Young Bar Hub which hosts the ‘Toolkit’, providing tips to young barristers on building their practice. This two-part finance guide for Counsel is a distillation of just some of the plentiful advice which is hosted on the Hub. The Toolkit also includes sections dealing with practice management, wellbeing and work-life balance, and employed practice.
Privately paid/Government Legal Department work
As explained in Part 1, privately paid work is typically undertaken pursuant to standard form contracts with specific clauses regarding your entitlement to payment and interest. In reality, regardless of your agreement, you may still have to wait several months until you are paid. You should plan on the basis of a cash flow that is two to three months ‘out’ from when you are billing.
Publicly funded work
Legal aid fees are paid by the Legal Aid Agency (LAA) and the fee schemes and payment arrangements are complex and varied. You can read more about these on the LAA website, but your clerks will be your first port of call.
In most legal aid cases, the barrister claims their fees directly from the LAA and a separate contract between the LAA and the barrister is not required – if the LAA refuses to pay there is a route of appeal to a costs judge. In some civil legal aid cases, the barrister might fail to be paid due to the fault of the solicitor. As mentioned in Part 1 of this series, the Bar Council has drafted a clause for use in publicly funded civil cases to enable the standard contractual terms to apply to them.
The average time for payment is around three to five weeks from the submission of a claim at the end of a case. The LAA will send an ‘assessed return’ and then payment. A lack of records (such as a missing indictment) will delay payment. It is important that you give your clerks and fees clerks all relevant information promptly that this can be submitted to the LAA.
For magistrates’ court work in crime, payment for counsel is entirely dependent on their solicitors. The solicitor is paid for the work by the LAA and pays the barrister as a disbursement. The solicitor’s LAA contract requires the solicitor to pay disbursements. However, if a solicitor fails to pay your disbursements, the grim reality is that reporting them to the LAA contract manager at their firm may result in a loss of future instructions from that firm. If you are having consistent payment problems with a firm of solicitors, talk to your fee clerks or contact the Bar Council’s ethical enquiries/remuneration enquiry service.
Publicly funded civil cases
Excluding family work, the three main types of civil legal aid are: Controlled Legal Representation (CLR) for representation at mental health tribunals or asylum and immigration cases in the First Tier Tribunal; Legal Help (advice and help with negotiating but not court work); and Full Public Funding (or ‘Certificated’ work).
Each of these is billed and paid differently and there are sub-divisions for each funding type.
CLR and Legal Help
Cases funded in this way are payable by your solicitors once the case has finished. Solicitors submit a bill to the LAA and payment is commonly received three to six months later. It is not possible to make a claim for payment on account.
Legal Aid Certificated cases
When a Legal Aid Certificate is in place, payment is made directly to counsel by the LAA.
The certificate’s issue date dictates counsel’s hourly rate. How the fees are reconciled will depend on whether the certificate has been applied for on paper or via the LAA’s online Client Costs Management System (CCMS). Enhancements on final claims and payments on account can be requested on fees for work done under certificates granted on or after 2 December 2013.
Applications for payments on account are submitted directly to the LAA by chambers. Payments will be made in certain circumstances and typically only once 12 months have elapsed from the date the certificate was issued.
Counsel is only entitled to claim one payment on account annually and will receive a maximum of 75% of the amount claimed. Payments are generally processed within six weeks of submitting a claim.
At the end of the case, if no order for costs has been granted against the other side, the legally aided party is entitled to have its costs paid by the LAA. Your final fee note should be sent to your solicitors for inclusion in their bill.
The LAA assesses bills under £2,500 (exc. VAT); those above are assessed by the Senior Courts Costs Office. Counsel’s fee may be assessed down, and counsel is entitled to appeal the assessment regardless of whether their solicitor is doing the same. No amount will be paid until all costs are agreed.
If no appeal is lodged, or once fees are agreed, a certificate will be sent to the court for sealing and then the bill submitted to the LAA for payment.
The family legal aid costs regime
Legal aid work is billed using Family Advocacy Scheme (FAS) forms and most fees are now claimed via the LAA CCMS portal. FAS forms need to be completed by you and signed by the judge or legal adviser after each hearing is completed. You must ensure that the times are initialed as well as any ‘ticks’.
There are a number of boxes on the forms that can be ticked depending on whether you qualify for relevant uplifts in each case. Guidance can be found on the back of the FAS forms regarding these criteria.
In order to successfully bill a hearing, your clerks will need the following:
- A fully completed, sealed and signed FAS form;
- A copy of the order listing the hearing with attendance times set out in the directions;
- If it is a final hearing you will need a sealed copy of the final order;
- A copy of your instructions, signed and endorsed; and
- A copy of the legal aid certificate (from your instructing solicitors).
You should also make sure that you keep (or make copies of) any train tickets or travel expenses above £15 and submit these to your clerks. If you follow the process set out above, you should be paid reasonably swiftly. Properly claimed fees are usually paid within a few weeks.
Fee chasing and collection
If your fees are seriously delayed, your first port of call is your clerks or fee clerk. They will usually chase outstanding fees. However, if this proves fruitless, then – assuming the work has been undertaken on contractual terms – you may wish to initiate proceedings for recovery of the debt.
On receipt of a judgment, you can report the solicitor to the Bar Council for listing the firm on the Advisory List of Defaulting Solicitors.
In relation to legally aided fees, the position will be complicated if your solicitors have made mistakes which jeopardise the validity of the legal aid certificate. Your clerks/fee clerks should be your first port of call. Each chambers has a contract manager at the LAA who should be able to assist you.
If the problem is not the payment of fees, but the amount due to be paid, you may be able to get help through the Joint Tribunal, a free service operated by the Bar Council and the Law Society. This can be invoked whether the barrister is working on contractual terms or not.
Contributors Edna Hackman, Landmark Chambers and Athena Markides, Crown Office Chambers