(Archive) Exceptional cases  

The other situation in which you may lodge a detailed account in connection with summary criminal or ABWOR proceedings is where, at your request, we decide that the case can be determined to be an exceptional case under regulation 4A of the fixed payments regulations.  This means that on the information you have given us we believe that it falls outside the range of cases to which a fixed payment can reasonably apply.

Determination of exceptional case status is not a separate grant of criminal legal aid.  It is simply a determination by us during the course of the proceedings as to the appropriate basis of payment at the conclusion of the proceedings.  The process is similar to the granting of sanction.

As discussed, relevant criminal legal aid and ABWOR are defined as criminal legal aid or ABWOR in relation to summary criminal proceedings other than excluded proceedings.  In the light of this definition, a case granted exceptional case status under regulation 4A remains relevant criminal legal aid or ABWOR despite the proceedings being subject to detailed accounting. Exceptional cases remain within the fixed payments structure.

This means that you cannot apply for a separate certificate in connection with

• proceedings arising out of the same incident in terms of regulation 4(3)(a), or
• proceedings listed at regulation 4(3)(b)

The single case arrangements under regulation 7 of the fees and information regulations continue to apply to a case extended exceptional case status.

You are required by the regulations to lodge a detailed account where we grant exceptional case status. The whole case is subject to a detailed account, not just the work undertaken following the grant of exceptional case status.  This applies even where there has been a transfer of the certificate, for example if the incoming solicitor obtains exceptional case status, the solicitor from whom the case was transferred must also lodge a detailed account rather than claiming a share of the fixed payment.

Exceptional case status is anomalous in that although strictly speaking the case remains “relevant” ABWOR or legal aid, certain consequences cannot reasonably follow:

• Given that the “proceedings” include proceedings arising from the same incident and ancillary proceedings (above), the detailed account shall include work undertaken in respect of all matters in the one detailed account submitted for payment.
• Regulations 4(4) and (5), providing for percentage reductions where acting for more than one client, and regulations 7, 7A and 7B prescribing the percentage split on the transfer of a certificate do not apply to an exceptional case. Both of these provisions assume in their terminology that there shall be a fixed payment, which there is not when the case is to be charged on a detailed basis.