CBAM 6.6.6 – the Amendment of the Beast?

From memory, the 2004 Criminal Contract removed the automatic right to a Magistrates Court standard fee for a breach matter. This was codified in General Criminal Contract Part B 5.8.8 (release 00). The exact same wording can now be found at SCC Specification 10.69. So in its 9-year lifetime this provision has not been subject to amendment.

The central issue is the phrase “heard at the same time” – which all practitioners and commenters we know have always interpreted literally. Practically this means that if the breach matter involves an entirely separate hearing you get a standard fee. If the matter is raised during a hearing about another case you don’t.

In the summer of 2011 there was a flurry of LSC audit activity and the issue became subject to a costs appeal on behalf of our client Firm A. The LSC adopted what we described at the time as a “novel” interpretation which I paraphrase;

“Heard at the same time means at any time the client has concurrent matters pursuant to a Representation order”

Practically therefore if there was any “overlap” of ROs no standard fee for a concurrent breach is payable.

This was subject to a successful ICA cost appeal. Firm A also consented to this case being quoted when the LSC continued to apply the same interpretation elsewhere. The effect our reference to Firm A was also successful, certainly for Firm B and perhaps others – I am unsure, fallible memory. This avoided further ICA appeals.

Now ICA appeals are not precedent setting and you can argue that the LSC approach, on audit at Firm B, was legitimate. What seems illegitimate to me, and this is a recurrent theme, is that they went to Firm B whilst unprepared to resolve the issue by application for a Point of Principle, at the time when this most clearly presented itself. Doubtless they have recouped costs on this interpretation elsewhere.

Bad enough? It does however get worse.

Our understanding, which may well be wrong, is that the LAA 2013 Criminal Bills Assessment Manual (CBAM) was considered to be a consolidation and not a revision; that it involved no attempt to change accepted billing practice. If this is so how do you explain this new sentence, on the point, contained at 6.6.6;

“When a breach proceeding is heard as a stand-alone matter, and in instances where the client is subject to no other criminal proceeding, then it will attract a standard fee”

Now you see what they have done there don’t you? That’s it, inserting their June 11 interpretation in the case of Firm A, which at the time they were not prepared to test by way of a PoP, and now, seemingly, without flagging this up as a contentious amendment to guidance.

Obviously Andrew Keogh spotted this first and in the excellent and indispensible “Keogh on Criminal Costs”, which at 7.1.4, says;

“it is the authors view that CBAM is incorrect”

We, equally obviously, agree (the cost appeal to which he refers is Firm A).

What is most disturbing in all of this, is that our experience tells us that this shying away from open and honest consideration of legitimate points of dispute, is pretty much standard practice, (we have other stories yet to tell, especially regarding CLA 56 for instance).

Also the new CBAM was one of the early acts of;

“a new Executive Agency of the MoJ committed to demonstrating the values required of all civil servants as set out in the Civil Service Code”. (LAA Business Plan 2013/14 page 8)

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