Written representations where they replace the need for any oral hearing

This guidance provides information about our approach to the assessment of an account or fee claim which includes charges in relation to written representations/submissions, which are ordered by the court (or tribunal) to be prepared as a direct alternative to, and displacing the requirement for, an oral hearing.

It was introduced as a result of the Covid-19 pandemic to accommodate cases where the court were considering some cases ‘on the papers’.

It is understood that the court are no longer dealing with many cases on that basis but where they do this guidance will apply.

Written submissions and Notes of Argument are traditionally documents that will be lodged in court to complement the oral advocacy.

This guidance does not apply to any such cases but in passing it is confirmed that those documents, whether one or both are required by the courts, will continue to be payable at either the prescribed framing charge, where appropriate, relative to the type of legal aid or ABWOR that is being provided.

The various tables of fees do not presently provide specific fees for the preparation of written representations in circumstances where those documents directly replace the court hearing.

The traditional framing charge associated with the drafting of documents may produce unrealistic and possibly unfair levels of payment for the work actually required for such written representations, and having regard to the equivalent advocacy fee that would normally be chargeable by the solicitor conducting the hearing.

Allowing a framing fee alone for the drafting of the representations may provide unreasonably low payment for the amount of time spent in their preparation.

This guidance covers the approach that we will take where the written representations directly replace and substitute the need for any separate hearing or oral advocacy.

In circumstances where a Note of Argument has also been required by the court in advance of any supplementary written representations this work will be payable separately subject to the statutory tests of taxation.

It is understood that the written representations that the court requires are expected to provide a comprehensive and focussed submission on the points which would require to be addressed had the hearing taken place, including the legal argument in response to submissions lodged by all other parties to the proceedings. This will allow the court to reach an informed decision on the relevant issues in dispute.

The drafting of these documents may take longer than oral presentation depending on the nature of the issues in dispute as it will effectively combine both the preparation and representation elements that will ordinarily be associated with a hearing. We also understand and appreciate that the time and resource required is likely to vary from case to case.

In the absence of any prescribed fee you are not restricted to a framing charge for written representations where the hearing is dealt with “on the papers” as a direct alternative to what would be a hearing in person.

Subject to the restrictions outlined in the later detailed comments, you may elect to charge the reasonable time engaged in the framing of the submissions.

Again, subject to the differences driven by the distinctions between different legal aid fee tables, you may be able to claim some time at the relevant “conduct” or “advocacy” fee, relevant to the type of legal aid or ABWOR which is being provided.

We do not anticipate that additional preparation would ordinarily figure as a separate element in such cases. The whole thing is preparation.

By definition there is no actual court attendance – only the work of preparing the written representations.

In any circumstances where a separate “additional” preparation charge is claimed, it is essential that you clarify what additional preparation work was undertaken that is not already incorporated into the reasonable time it took to frame the written representations.

Without this information, we will not be able to assess the claim, and no payment can be made in respect of any element which otherwise presents as double accounting or overlap in, or the duplication of, the payment claim for the work.

We will require to establish, as far as is possible, whether the amount claimed represents a reasonable fee for the work that would be involved in preparing the representations.

Our intention is to apply as consistent an approach as is possible to the assessment of solicitors and counsels fees mindful of the need to have regard to the different payment arrangements (block/detailed/fixed/standard) that can apply and whether separate preparation fees would have been payable had the solicitor or counsel attended an oral court hearing.

You should provide a copy of the written representations when submitting your claim.

While the process of assessment is subjective we must apply and have regard to the Act, regulations and taxation policy and practice (where this exists) in a way which is consistent and provides fair and reasonable remuneration.

The use of hours worked multiplied by the hourly rate will seldom, in isolation, be helpful in determining the reasonable fee payable.

Only the time reasonably expended is payable, otherwise the inefficient or slow worker gets a higher level of remuneration than the efficient worker.

Accordingly, in any case where the time taken to frame the written representations significantly exceeds the time to prepare and conduct the equivalent oral hearing it is essential that you provide a detailed note as to the reasons why in support of your claim.

Failure to do so may result in restrictions being made to the account.