Judicial Apportionment – another legal aid nightmare!


Created on March 04, 2020

Once you have received your Representation Order, following protracted correspondence with the LAA, you wouldn’t be criticised for thinking there is nothing further you need to do with regards to Legal Aid and can now properly start working on your client’s case.

But are you aware of The Criminal Legal Aid (Contribution Orders) Regulations 2013

If you are not, beware, because they could have a substantial impact on the amount of legal costs your client is required to pay at the end of their case.

The Criminal Legal Aid (Contribution Orders) Regulations 2013. The relevant regulation is reg. 26, set out below:

Assessment by the court of proportion of the cost of representation

 26.—(1) This regulation applies where an individual is—

(a)charged with more than one offence; and

(b)convicted of one or more, but not all, such offences.

(2) The individual may apply in writing to the judge for an order that the individual pay a proportion of the amount of the cost of representation in the proceedings in the Crown Court, on the ground that it would be manifestly unreasonable to pay the whole amount.

(3) An application under paragraph (2) must be made within 21 days of the date on which the individual is sentenced or otherwise dealt with for the offence following conviction in the Crown Court.

(4) The judge may—

(a)make an order specifying the proportion of the cost of representation for which the individual is liable; or

(b)refuse the application.

(5) An order under paragraph (4) must not require any other individual to pay any of the cost of the individual’s representation.

(6) In this regulation “judge” means the trial judge or a judge nominated by the resident judge for the purpose of deciding the application.

In practice, what does this actually mean?

An application for judicial apportionment applies:

  1. where the defendant is charged with more than one offence, and
  2. is convicted of at least one offence on the indictment but
  3. is not convicted of all of the offences on the indictment

If 1, 2 and 3 are met, the test the judge applies is whether it would be “manifestly unreasonable (for the defendant) to pay the whole amount” of his legal costs. Notice of Application for Apportionment of Costs can be found at  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/345852/legal-aid-judicial-apportionment.pdf and must be made to the court within 21 days of sentence.  The court has no power to extend this time limit and this is why it is imperative that lawyers are aware of the regulations. In short you either make the application within 21 days of sentence or not at all.

Judicial Apportionment is not well known in the criminal legal world, neither by lawyers or judges and the impetus is on the solicitor acting to be aware from the time a representation order is granted that there may be a potential need for an apportionment application to be made at the end of the case, to advise their client of their right to make an application and if appropriate to instruct counsel to make the application in court, at the time the client is convicted / sentenced.

Apportionment of costs has a bearing in any case where the defendant is required to pay a contribution from income and / or at the end of the case, from capital, for his legal representation and has been convicted of one, but not all, of the offences on the indictment.

You do not need the notice of contribution from capital from the LAA in order to make the apportionment of costs application, as often this letter will not have been received by your client within the 21 days’ time limit.  The judge decides the application on a percentage payable by the defendant and therefore does not need to know the actual costs in order to make his determination.

If granted, the form must be submitted to the LAA with your bill.

What is “manifestly unreasonable”

This is a matter for the judge determining the application and each application will be judged on its own merits.  There isn’t a prescribed list of what is and is not manifestly unreasonable but a good place to start is to look at how your client incurred the costs to trial.  For example, if he pleaded not guilty to all charges at the PTPH without offering a plea to a lesser or alternative offence, and then goes on to plead guilty to a lesser or alternative offence on the first day of trial, it is his own actions that caused the costs to the date of trial and therefore is not manifestly unreasonable.  Turning this round, if he offered a plea to a lesser or alternative offence at the PTPH which was not accepted by the Crown at that time, but then accepted by the Crown at trial, it was not the client’s actions that incurred the costs from the PTPH to trial and may be regarded as manifestly unreasonable for the client to pay all of his legal costs. This is a very simplistic example and as we all know, in reality our cases are often more complicated.

Be aware of cases where there is a re-trial, should your client pay the costs of the first trial?

Finally, the 21 day time limit is an important key date for the office diary as failure to apply for apportionment may lead to a substantial financial claim against the firm and an increased insurance premium!

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