Another Fine Mess

Yesterday I took a breather between lever arch files to chat with colleagues about the new fee regime that we will be paid under from next October. Some of the fees are clearly better than now, largely care work. For that I suspect we have the furore arising from the Baby P scandal to thank. But whereas domestic violence injunction work used to be the poor relation in the legal aid family it is now one of the most attractive pieces of work to do, notwithstanding the fact that it is usually quite straightforward to prep and run. Fee rates appear to be more linked to whether or not something is a political hot potato than by complexity per se – domestic violence and safeguarding children being two such hotties. So, for a return date injunction (which is relatively easy to prepare and can (often) be disposed of within minutes at a 30 minute block listed appointment) the remuneration is excellent. And its one of the few kinds of case that can often be double or triple stacked without causing any professional difficulty. At £400 a pop – cher-CHING! Nice work if you can get it – we’ll be fighting over these briefs.

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But just to demonstrate that this is only a different set of swings and roundabouts, there is a whole range of other work, which currently makes up the bread and butter income for many at the family bar (particularly at the junior end), that will be paid at appallingly low rates. So in private law children (contact, residence etc) the hearing fees start at £69.55, and for equivalent hearings in ancillary relief (money on divorce) precisely 65p more at £70.20 (who knows why?). This is a gross figure, before travel expenses, and including preparation and travel time. In real terms it amounts to probably £30 a day in your pocket (family barristers income comes almost exclusively from court work unlike solicitors who bill for the work they do back in the office). Remind me again why I trained for three years post graduation and incurred at £25,000 debt?

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In fairness, those fees increase where the hearing lasts more than an hour from the time the advocate was ordered to attend court. As long as an advocate is at court for an hour and a minute the fee will be approximately £100 higher. How well has this been thought through? At many courts local to me there are two relatively common listing practices which appear to have been overlooked by those who have apparently costed this meticulously and down to the last penny: block listing and directing the parties and their representatives to attend court for negotiation at least an hour before the hearing. I wonder what proportion of cases the LSC is banking on being disposed of in an hour or less for a mere £70 odd? If a court block lists say 10 cases for 10am on a Monday morning, at least 8 of them are inevitably going to end up being paid at the higher rate. None of us will want to be the unlucky advocate whose case goes in first out of the block list, and whoever draws the short straw they clearly can’t all be dealt with before an hour is out. I can see ushers up and down the country struggling to find something for the judge to do before 11am.

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And of course in a case where parties are ordered to attend an hour prior to the hearing for negotiation the lower fees will never apply.

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When you have a minimum fee to pay to chambers each month an income of £30 a day is just not viable, even if its offset by higher fees on some days. No doubt the notion is that an advocate can triple stack short hearings and make a reasonable amount in a day, but any advocate will tell you that there is no reliable way of knowing before you attend a hearing how long it will last. That is why cases are block listed – so that the court can juggle them around as they become ready to go before the judge. One is faced with the proposition either of taking several cases and running a distinct risk of compromising quality of service (or even a wasted costs order against counsel personally if she cannot manage all the work she has taken on) or of taking on simply one case and hoping the court will have overlisted (or perhaps simply happening to be in the loo or deep in negotiation when the usher calls the first case). Neither is satisfactory for advocate, for client, for the interests of justice. And it doesn’t sound to me like a system that reflects the work done or is anything other than arbitrary.

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Block listing and requiring the parties to get their neogitations done and dusted so a case is ready to go at the listed start time are both legitimate method used by the court service to manage their workload. There is a real tension here between the practices of Her Majesty’s Court Service which are designed to make the best use of limited judicial resources and court time, and the theory behind the new fee structure which is designed to save the LSC money.

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Sometimes I wonder how much has been spent by the LSC on this wretched consultation and fee revision process and think wistfully that it could have been spent on legal aid. And its on days like these that I despair that all these endless fee cuts achieve is to push a diminishing amount of money from one area to another in complicated ways that fail to save the public any money, reduce the value obtained for that money and put at risk the interests of justice.

4 thoughts on “Another Fine Mess

  1. Familoo

    Interesting article, and for those of us who are full time McKenzie friends the machinations of counsel are clearer to us than they were before this post was published!

    What I would like to talk about is an issue that is mentioned in the post, namely DV injunctions (non molestation and occupation orders). I am assuming that you are primarily talking about the ex parte variants of these orders as being highly profitable for counsel?

    In my view an ex parte application for a non mol and/or an occupation order is a much abused application. Your post gives a possible reason as to why it used so readily – it is a mega margin buster for lawyers!

    If there is such a financial incentive for vocational lawyers to make this sort of application (rather than have the matter listed on notice or alternatively engage in correspondence) there may be a suspicion that a without notice application is being made for balance sheet reasons rather than there being any genuine risk to the applicant.

    Whilst the financial incentive gained by making a without notice application may partly explain their popularity, I also feel that a significant number of ex parte applications are made for tactical reasons ;namely to temporarily exclude one parent from a relationship with any children of the family. In most cases the excluded person is the father.

    Despite the obvious severity of sanction that comes as a consequence of making an injunctive or exclusionary order, I continue to be amazed as to what passes as scrutiny in some courts hearing these applications. I am also surprised as to how allegations made at the without notice hearing are subsequently withdrawn, dealt with by way of undertaking or don’t reach the standard of proof at a subsequent fact finding hearing.

    Do the lawyers give a refund to their clients or to the LSC after the return day when what they previously advised and advocated ex parte, turns out to have always been incapable of reaching the required standard of proof? Of course the reply will be that applicant’s lawyers can only be held responsible for what they knew at the time. That brings me on to my final point.

    I would like to remind your readers that when an ex parte application is made the applicant and their legal teams are under a duty to disclose all relevant information to the court. I wonder how many counsel can hand on heart say that they always ensure this rule is followed? A fact pattern might help to understand where I am coming from..

    Applicant and respondent have been in a self confessed reciprocally violent relationship. Concomitant Children Act Section 8 proceedings, where mother’s stated position is that she is opposed to the principle of contact. She has previously made unsubstantiated allegations of sexual abuse against father.

    Should the ex parte application make any mention of applicants violence, stance on contact or previous allegation history? I think it should as such background information is both relevant and essential toward understanding the applicant and not just the application.

    John Junk
    http://www.familycourtsupport.co.uk
    Blog at http://www.mckenziefriend.com

    • Hello John,

      Thanks for your comment on ex parte applications for non molestation orders and injunctions.

      My post related to the proposed fees for barristers which firstly do not come into effect until Oct 2010 and secondly do not apply to solicitors. It is of course solicitors who will be the professionals advising a client on whether or not to issue ex parte, and indeed will be the ones to issue that application. My comments did not relate to ex partes as you suggest but to final hearings on an injunction application. The fees counsel would receive for an ex parte would be considerably less – £90.55 gross (less than current figure which is £120). So I don’t think the new proposed scheme would create any perverse incentive that would encourage the issue of an ex parte, appropriate or otherwise. Historically and currently barristers undertaking injunction work are very poorly paid, and this is the poor relation of other types of legal aid work. There may be an incentive or disincentive to barristers to agree to accept instructions for particular hearings, but this should not have any bearing on the applications issued by solicitors. The fee structure for solicitors is not on a graduated fee basis and operates rather differently. Although I’m not an expert on that I can’t think of any particular reason why that would incentivise ex parte as opposed to on notice applications, except insofar as it may slightly increase the overall costs claimable in respect of a particular legal aid certificate. But I would guess that most solicitors would rather maximise their income by spending their time on other more lucrative areas of work rather than this type of work.

      A few other observations on your response:

      Ex parte occupation order applications are quite rare, and even more rarely successful, but you are correct that the majority of non-molestation applications are ex parte (anecdotally at least – I don’t have any stats but this is my experience). Often counsel are not instructed at ex parte stage as solicitors are quite comfortable undertaking this work themselves.

      Increasingly even where applications for a non-mol are made ex parte the court will include a proviso ‘save for the purposes of agreed or ordered contact with the children’, but even if this is not the case an on notice hearing will usually be listed within a week or so to enable the Respondent to have his (or her) say. This is often the point at which contact is dealt with.

      The legal basis upon which an ex parte order can be made is quite properly different to the standard of proof required to secure an injunction for anything other than a holding period. At the initial ex parte stage a party may need immediate protection, and it would defeat the object if no protection could be put in place until the evidence was tested. Providing there is evidence which adequately raises the need to protect, the court will firstly ensure safety and then move as swiftly as possible to ensuring that the claims are really founded in fact before making any long term order. You complain about the lack of scrutiny at the ex parte stage, but in reality it would be impossible for the court to try and scrutinise or test the evidence at this stage and it does not attempt to do so. It is frustrating for someone faced with an order made without notice to them and where the claims are untrue or exaggerated but the only other alternative would be more unacceptable.

      Applications are often compromised by way of undertaking or otherwise at the second hearing for any number of reasons. Most often because the person against who the application has been made does not contest the application or offers undertakings. Of course these are formal promises to the court, and not available as a form of enforceable protection until the matter has been forced into the court arena. In those circumstances the compromise of the application does not mean it was not well founded, it may have been the only way to secure protection whether that be by way of undertaking or order.

      You are right that when a respondent is given the opportunity to respond to an application they will often highlight non-disclosure of facts or of a different version of events. This is precisely what the court has to test if the matter is contested. Of course whilst a legal advisor should ensure that all material information is disclosed to the court, they can only advise on the basis of what they are told by the client. Often it is a case of a disagreement between parties about what has happened in the past rather than one party omitting to mention something that they accept has in fact happened.

      Hope that helps.

  2. Familoo

    Thanks for your reply. Very solid information as usual.

    It is interesting that relying on anecdotal evidence you suggest that most Non Mol’s begin life as ex parte applications. That is my experience also, and probably fits with the intention of Parliament, so there is nothing controversial there. I have no official figures to rely on either but my experience is that only around one in twenty Non Mols would originate by way of a hearing on notice.

    In my 12 years experience McKenzie friending in both the jurisdictions of England and Wales and Northern Ireland I have a different experience as to the immediacy of return days.

    I can safely say I have never seen a case return within a week or thereabouts anywhere in either jurisdiction, with 4-6 weeks the norm, and even then mostly for directions, not a substantive hearing of the ‘facts’. If there are parallel Contact or Residence proceedings it is not abnormal for a Non Mol to be case managed as if were inextricably linked to the Children Act matters and extended for a significant period, sometimes many many months, until being defeated at hearing, withdrawn or compromised by way of undertaking. Of course a number are adjudicated on and the original allegations are found to have occurred.

    Perhaps one of the reasons that there aren’t many ex parte Occupation Orders is that a Non Mol of any flavour has pretty much the same immediate effect as an Occupation Order? Personally I have NEVER seen a non mol that didn’t include an exclusion from a property where the applicant lived (often times a property that the respondent lived at until the making of the order).

    Even if an exclusionary caveat was missing from the Non Mol it is an Occupation Order by another name as it would take a brave or foolish man or woman to turn up at a house they previously shared with the applicant!

    John Junk
    Website http://www.familycourtsupport.co.uk
    Blog at http://www.mckenziefriend.com

    • I would say that an on notice return date is usually within two weeks, most often less. I’ve never known a court take 4-6 weeks to list an on notice hearing. You are right though that this ‘return date’ will only be a short time slot, so if matters are not agreed there will be a delay whilst the matter is adjourned for a longer trial – and THAT might take 4-6 weeks, or longer if there is a need to secure police disclosure. And you are also right that non-mol and children act matters may be treated as linked – because they are. They will revolve around the same facts i.e. allegations of violence or harassment.

      Most often parties are living in one home before separation and upon separation one will ver probably have to leave. But where the vacating party is a co-tenant or co-owner of a property they will still remain entitled to return. Unless the court prevents that. If there are allegations of violence yet to be tested it makes no sense for either party to be in close proximity which will almost inevitably will result in further violence and / or allegations of violence. In many instances attending at a property and attempting to gain entry to a property occupied by a fearful ex-partner will amount to a breach of the non-mol by way of harassment anyway.

      In a case where a party has already left and has alternative accomodation it is comparatively easy to secure an occupation order, but where a party remains in occupation and has nowhere else to go it is much harder to obtain an order ousting them.

      There is now one fundamental difference between a non-mol and occupation order, which is that an occupation order is not subject to criminal sanctions, but is subject to an old fashioned power of arrest, enforceable by way of civil contempt. So anything that looks and smells like an occupation order should be properly described as such. Previously it didn’t much matter how you categorised these orders, but now the penalties and enforcement routes are significantly different.

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