Very High Cost Cases - Terms of Appointment
Terms of Appointment for Counsel instructed by the Crown Prosecution Service in cases which fall to be paid in accordance with the Very High Cost Case fee scheme
Annexes
Purpose of the document
This document defines the services which the Crown Prosecution Service (CPS) expects of counsel in the preparation of cases and invoicing of fees which fall to be paid in accordance with the Very High Cost Case Fee Scheme.
Review
The Very High Cost Case fee scheme and Terms of Appointment document will be subject to regular review and amendment.
Appointment of Counsel
The CPS shall follow these procedures for instructing counsel in a VHCC.
The reviewing lawyer in consultation with the Chief Crown Prosecutor/Head of Division/Sector Director (CPS London) and other CPS representatives shall nominate suitable prosecution counsel in accordance with current guidance on selection of advocates [Note: Current guidance can be found in 'Arrangements for the selection of Advocates instructed by the Crown Prosecution Service']. The CPS operational unit shall contact counsel's clerk by telephone to check nominated counsel's initial availability. If counsel is available written instructions and relevant paperwork shall be sent to counsel.
The CPS must be satisfied that counsel has sufficient time available to prepare the case and to avoid a return brief. Therefore, counsel or their clerk will be required to provide a personal undertaking that he / she has sufficient time available to prepare the case and represent the prosecution and that he / she is willing to comply with the terms of the VHCC scheme.
Identifying a VHCC
Cases in the Crown Court
A VHCC is:
- any case committed, sent or transferred to the Crown Court on or after 3 July 2006 in which the trial is estimated to last more than 40 days. The estimate should be confirmed at the Plea and Case Management Hearing (PCMH). Or
- any case committed, sent or transferred to the Crown Court on or after 3 July 2006 in which three or more trial counsel are instructed in the preparation and presentation of the case, regardless of the estimated length of trial. Or
- any case committed, sent or transferred to the Crown Court for trial on or after 3 July 2006 in which there is uncertainty about a) when the case will be listed for PCMH; or b) the PCMH is adjourned for a period well beyond that expected in a similar case; or c) the number of advocates to be instructed. These should be referred to the Head of Fees by the Chief Crown Prosecutor/Head of Division/Sector Director (CPS London). The Head of Fees or a nominated deputy will determine whether the case can be confirmed as a VHCC.
Pre charge advice/Pre-committal cases
Any case in which counsel is instructed on or after 3 July 2006 to provide pre charge advice will fall to be paid in accordance with the VHCC fee scheme.
Where counsel is instructed to provide pre charge advice or undertake pre-committal work and the case is subsequently committed, sent or transferred to the Crown Court, the instruction to provide advice or undertake pre-committal work in accordance with the VHCC 'Terms of Appointment' will conclude and the CPS will reassess the case against the criteria listed at cases in the Crown Court above.
If confirmed as a VHCC at PCMH the fee category applicable will need to meet the relevant criteria including the volume of prosecution documentation (excluding unused material). See determining the fee category and Annex A for further details.
Court of Appeal/Higher Court cases
Any Court of Appeal or Higher Court work in which counsel is instructed on or after 3 July 2006 (excluding bail applications and cases referred by the Attorney General) will fall to be paid in accordance with the VHCC fee scheme.
Magistrates' court
Any magistrates' court trial estimated to last 4 days or more in which counsel is instructed on or after 3 July 2006 will be paid in accordance with the VHCC fee scheme.
Reduced scheme
Smaller Advice/Pre-committal, Court of Appeal/Higher Court and Magistrates Court cases in which the reviewing lawyer can make an accurate determination of the hours of preparation required and any court hearings to be attended by counsel, can be managed using a reduced version of the VHCC fee scheme. (See managing VHCC under the reduced scheme.)
The case plan
Within 5 working days of the case being identified as a VHCC, the reviewing lawyer shall complete and send counsel the Case Plan. The Case Plan will provide an overview of the case and an initial estimate of hours required to prepare the case. The overview of the case will contain the charges/potential charges, complexities, brief facts, legal issues etc.
The CPS accept that the Case Plan may not reflect all the potential issues in the case and level of preparation required. Therefore, no later than 15 working days after receipt of the Case Plan, the reviewing lawyer and counsel will agree the Case Plan by completing the relevant sections.
The agreed version of the Case Plan will contain an overview of the case, an agreed estimate of hours of preparation and the work to be undertaken during the first 8-12 week stage of the case. The Case Plan will be a dynamic document and will provide a record of the mutual expectation and understanding of the issues in the case and amount of work required. The reviewing lawyer and counsel will be responsible for continuously evaluating new material and developing issues that may have an impact on overall preparation time. Revision of the agreed hours of preparation will be endorsed on the Case Plan.
Determining the fee category
A list of fee categories can be found at Annex A.
Once the fee category has been determined, the reviewing lawyer will record the fee category, hourly and refresher rates in the Case Plan. The fee category will be determined by the reviewing lawyer within 5 working days of the case being confirmed as a VHCC and before the Case Plan is sent to counsel. In smaller advice, Court of Appeal/Higher Court cases and Magistrates' Court cases where a Case Plan is not required, counsel shall be notified in writing within 5 working days of the case being confirmed as a VHCC.
Cases may be sent out initially at one category and increase in size or complexity, at a later stage, warranting a move to a higher category. The rate applying to the higher category will be paid from that point on but will not be paid retrospectively.
Advice cases
In advice cases the reviewing lawyer shall determine the fee category i.e. the hourly preparation rates, by referring to the Criteria for Fraud VHCCs or to the Criteria for Non-Fraud VHCCs at the advice stage. Assessment of the number of prosecution documentation at this stage is defined as all material sent to Prosecution Counsel.
Crown Court cases
In VHCC prosecutions in the Crown Court the reviewing lawyer shall determine the fee category i.e. the hourly preparation, refresher, and other hearing rates by referring to the Criteria for Fraud VHCCs or the Criteria for Non-Fraud VHCCs. Assessment of the number of pages of prosecution documentation post committal, sending, transfer is defined as all material excluding unused material.
Court of Appeal/Higher Court cases
In Court of Appeal and Higher Court cases the reviewing lawyer shall determine the hourly preparation, refresher and other hearing rates at Category 1, Category 2 or Category 3, by considering the particular complexities of the case and the previous history of the case. Category 1 must only be used in Serious Fraud cases, Terrorism cases (see Glossary) and matters referred to the House of Lords.
Managing preparation
Managing preparation will be a partnership between the reviewing lawyer and counsel. Preparation shall be managed in stages using a Stage Plan. At the beginning of each stage of preparation the reviewing lawyer and counsel will produce an agreed Stage Plan setting out the work to be done during the stage.
The Stage Plan will set out the key case milestones and the work to be done by each member of the trial team i.e. counsel, reviewing lawyer, higher court advocate and caseworker. The Stage Plan should accurately set out the tasks to be undertaken during the stage. A stage will normally last between 8 and 12 weeks. The first Stage Plan is included in the Case Plan.
The Stage Plan will include:
- the time period for the stage;
- the steps in proceedings the stage covers;
- an overview of what will be achieved in the stage and by whom in the Trial Team;
- division of work between members of the Trial Team;
- the planned hours to be undertaken by the individual on each area of work;
- where appropriate, the number of pages of material involved, the number of witnesses and the number of conferences required for each area of work;
- the key dates by which work will be completed.
It is the responsibility of the reviewing lawyer and all counsel to agree each part of the Stage Plan. The Stage Plan shall be reviewed regularly and amended to reflect ongoing developments during the stage.
At the end of the stage counsel shall record the actual number of hours worked against each area of work in the Stage Plan. An electronic Stage Plan can be exchanged between counsel and the reviewing lawyer by secure e-mail.
An unreasonable failure by counsel to complete a Stage Plan will result in counsel not being paid for work done during the stage.
The CPS accept there may be times when counsel will carry out work not agreed in the Stage Plan. The CPS anticipates three circumstances when counsel can be remunerated for carrying out work not agreed in the Stage Plan. The three instances are:
- when necessary additional work arises from the service of further papers in the same category of documentation that has already been agreed;
- additional work, falling within the tasks agreed, within a tolerance of 10% of the total hours agreed for the stage; or
- when it is not possible to contact the reviewing lawyer in advance, provided that genuine efforts are made.
By the end of the case there should be a set of Stage Plans providing an audit trail of all preparation.
If counsel is unable to undertake some or all of the work agreed on the stage plan, the reviewing lawyer should be notified and the work and hours will be carried over to the next stage with agreement from the reviewing lawyer.
Legal research
Time spent on pure legal research will not normally be paid, unless the case involves a novel, developing or an unusually complex point of law, justifying legal research by counsel. If extraordinary legal research is required, it should be specified as an item of work in the Stage Plan. Counsel is assumed to be up to date in substantive and procedural law (Perry and Another v the Lord Chancellor,The Times, May 26, 1994). The preparation of any case for trial includes consideration of the application of the relevant law to the facts of the particular case.
Work records
Counsel is expected to record details of all chargeable preparation at or about the time that the work is undertaken. The records, ideally in electronic format, should record the task undertaken and the time spent, using the 24 hour clock. An Excel spreadsheet template available from CPS can be used for this purpose.
e.g. 11.10.04 - Consideration of evidence of Dr Smith - 19-00 - 21-30.
Failure to submit sufficiently detailed work records will delay payment or result in the invoice being rejected. Work records should be submitted to the CPS in the agreed format and be capable of being audited against chambers' diary or other records.
Details of hours worked by individual counsel will be shared with the Legal Services Commission and possibly the Department for Constitutional Affairs and the Office of Criminal Justice Reform.
The end of the stage
Within 20 working days of the end of the stage, counsel shall send the work records, a fully endorsed Stage Plan, receipts and an invoice to the reviewing lawyer. A separate note should specify any additional issues to be considered before the fees are audited.
Failure to submit the work records, receipts, endorsed Stage Plan or invoice within the specified time period or documents of sufficient quality will result in payment being delayed and/or refused.
Work done between committal and PCMH
Work undertaken between committal, sending or transfer and PCMH will be audited after PCMH. Counsel shall keep detailed work records of all work done between committal, sending or transfer and PCMH.
If the case is confirmed as a VHCC either by third counsel being instructed or the trial being estimated to last over 40 days, all work done between committal and PCMH will be audited and paid at the confirmed hourly rate if determined as properly and reasonably undertaken.
If at PCMH the trial is estimated to last 40 days or under, it will be confirmed as a graduated fee and the CPS Graduated Fee Scheme shall apply and work done between committal and PCMH shall fall to be paid under GFS arrangements.
Submission of invoices
Within 20 working days of the end of the stage, counsel should submit the work records, endorsed Stage Plan, receipts and an invoice to the reviewing lawyer. Provided no issues requiring clarification are identified with the submitted paperwork, the CPS shall make payment within the current Service Standard of 20 working days of receipt of the invoice.
For every 4 weeks worked during trial, counsel shall submit a claim for refreshers to the reviewing lawyer. Provided no issues requiring clarification are identified with the submitted claim, the CPS shall make payment within the current Service Standard of 20 working days.
Within 20 working days of the end of the case, counsel shall submit work records, an invoice and receipts to the reviewing lawyer for all work for which payment has not been received. Provided no issues requiring clarification are identified with the submitted paperwork, the CPS shall make payment within the current Service Standard of 20 working days of receipt of the invoice.
If counsel has conducted work prior to the pre-committal / sending stage or between committal / sending and PCMH, counsel should submit work records, receipts and an invoice to the reviewing lawyer no later than 20 working days after the PCMH.
Failure to submit the work records, receipts, endorsed Stage Plan or invoice within the specified time period or of sufficient quality will result in payment being delayed and/or refused.
Audit
When a case is identified as a potential VHCC or confirmed as a VHCC, the CPS Head of Fees will appoint a Case Auditor to work with the reviewing lawyer on effective management of the VHCC process. The Case Auditor will provide initial guidance to the reviewing lawyer on the VHCC management process and provide further procedural advice and guidance on request.
At the end of each stage, the Case Auditor shall work with the reviewing lawyer to audit the work records and pay the fees. Issues with the work records, endorsed Stage Plan or invoice will be raised with counsel by the reviewing lawyer before the fees are paid.
The reviewing lawyer will keep a full record of all decisions made, including how the work is allocated between the Trial Team and how agreement is reached on the hours required for each area of work. The Case Auditor shall oversee the reviewing lawyer's application of the VHCC process and audit the reviewing lawyer's decision making processes. If the Case Auditor has issues of concern the matter shall be referred to the Chief Crown Prosecutor/Head of Casework Division/Sector Director (CPS London) and the Head of Fees.
Counsel are obliged to keep their own records of agreements made with the reviewing lawyer on levels of pre-trial and during trial preparation. If a dispute arises over a claim for payment, counsel's records will be considered in support of a claim for payment.
The CPS reserve the right to withhold payment if counsel unreasonably fails to comply with instructions or the standard of work produced falls below that normally expected from counsel of the same level and experience. If payment is to be withheld, the CPS shall notify counsel immediately in writing giving full reasons. In the event that payment is withheld, counsel will have the right to take the matter to the Appeal Committee.
Refreshers
The full daily refresher rate will be paid if counsel is in court for more than 3½ hours. If the court day lasts less than 3½ hours, counsel shall receive a half day refresher, unless the court sits both before and after the luncheon adjournment. In these circumstances counsel shall be paid a full day refresher.
It is assumed that a full day refresher will include 5 hours in court and up to 2 hours preparation either before or after the hearing. It is assumed that the half day refresher shall include 2½ hours in court and 1 hour preparation. These times may vary depending on the case or the court.
Other hearings
The Other Hearing rate will be applicable to all pre-trial and post-trial hearings which last no more than 2 hours. Should an Other Hearing last more than 2 hours, a half or full day refresher fee will be payable according to the length of the hearing. The duration of the court hearing excludes any waiting time.
Preparation during trial
Before the trial or other main court hearing commences, the reviewing lawyer and counsel should reach broad agreement on the amount of preparation likely to be required during the court stage. Agreement at the outset will not preclude continuing review and amendment to the agreement during the course of the case.
Where possible, counsel should contact the reviewing lawyer in advance if the level of preparation during trial is likely to exceed the original agreement. If counsel is unable to contact him / her they should do so as soon as possible after the event to inform the reviewing lawyer of the work undertaken and justification. The reviewing lawyer will conduct a subsequent assessment of work done and determine whether the work done was properly and reasonably undertaken. If so, all such work will be paid at the appropriate hourly rate. Where work is to be undertaken during the course of a weekend such work must be agreed in advance with the reviewing lawyer.
If agreement cannot be reached on levels of preparation during the trial/hearing, the reviewing lawyer will seek advice from a more senior prosecutor, and if agreement still cannot be reached between the reviewing lawyer and counsel, the reviewing lawyer will refer the matter to the Appeal Committee.
If counsel is dissatisfied with the reviewing lawyer's determination, he/she may appeal the matter to the Appeal Committee.
Ancillary work
Counsel will be remunerated for conferences at the hourly rate for preparation specified in the Case Plan.
Counsel will be remunerated for reasonable time spent preparing advices, case summaries, opening notes, opinions and indictments, and time spent engaged watching or listening to visual or audio material, at the hourly rate for preparation. If work of this type is required, it should be allocated to the appropriate level of counsel and recorded as an area of work in the Stage Plan.
Counsel will be remunerated at the hourly rate for preparing the Stage Plan and meeting the reviewing lawyer.
Travel and hotel expenses
Counsel shall receive travel expenses if required to attend a conference, view of the locus or court hearing. The journey is deemed to start from chambers unless the actual starting point is nearer. Travel expenses will be remunerated at the standard fare rate. First class travel will be considered if the reviewing lawyer is satisfied that counsel is engaged in work on the preparation of the case whilst travelling. First class travel must be agreed in advance with the reviewing lawyer. If own transport is used, payment will be made at £0.45 per mile. Travel expenses will only be paid if the journey was necessary. Counsel may also claim an additional hourly rate of £25 (regardless of grade) for reasonable travel and waiting time to and from a conference, view of the locus or court hearing.
Counsel will be remunerated at the hourly preparation rate if required to prepare the case while travelling. Work done whilst travelling must be recorded in the work record. Counsel will not be entitled to claim travel and waiting time where preparation time has been claimed for the same time period.
Authority to incur expenses for hotel or other temporary accommodation should be secured from the reviewing lawyer before incurring the expenditure. Only reasonable expenses for accommodation and meals will be paid on production of receipts. The CPS will not meet the cost of alcohol.
Managing VHCC under the reduced scheme
Smaller Advice, Court of Appeal/Higher Court and Magistrates Court cases in which the reviewing lawyer can make an accurate determination of the hours of preparation required and any court hearings to be attended by counsel, shall be managed using a reduced version of the VHCC fee scheme.
In advice cases the reviewing lawyer shall determine the hourly rate in accordance with the Fee Selection Criteria contained in these Terms of Appointment. In Court of Appeal/Higher Court cases the reviewing lawyer shall determine the hourly and refresher rate at Category 1, Category 2 or Category 3, by considering the particular complexities of the case and the previous history of the case. Category 1 must only be used in Serious Fraud cases, Terrorism cases (see Glossary) and matters referred to the House of Lords. The reviewing lawyer shall notify counsel of the hourly rate in writing.
The reviewing lawyer shall also notify counsel of the number of hours of preparation required to prepare the advice. If the estimated hours of preparation appear unreasonable counsel should contact the reviewing lawyer to discuss the estimate. Counsel and the reviewing lawyer will not be expected to manage continuing preparation using the Stage Plan. Instead, counsel shall keep a full and detailed work record of all preparation (in accordance with work records above). If the case develops in such a way as to require a higher level of input from counsel than originally anticipated, counsel should put the reviewing lawyer on notice of the additional work to be undertaken. Should the size of the case increase substantially the case shall be managed in accordance with the full VHCC process. The fees will be audited at the end of the case and counsel paid for work properly and reasonably undertaken at the specified hourly rate.
Returns
Counsel should only accept a case where their professional commitments will allow them to see the case through to conclusion (see appointment of counsel for further details). Having accepted a case, and been involved from the outset, counsel are obliged to use their best endeavours to avoid having to withdraw from the case and will only do so for reasons outside their control or because of professional embarrassment.
Where a return is unavoidable, counsel will be responsible for ensuring that immediate notice, followed by a full explanation in writing, is given to enable the CPS to choose and instruct another advocate. That notice will contain a full explanation of why the brief has had to be returned, including details of when counsel became aware of the issue causing the return. Once notice has been served, counsel should do only such work as is necessary to progress the case until the matter has been resolved.
Very High Cost Cases are by their nature cases of the utmost seriousness. No return is acceptable save where the following applies:
- counsel is unable to attend court because of illness, accident or unexpected incapacity;
- attending court would cause counsel grave personal hardship, for example, following bereavement;
- the case has been fixed by the court in the knowledge that counsel instructed will not be available;
- circumstances have arisen outside counsel's control which are such to make a return unavoidable.
In the event of a brief being returned, the CPS may refer the matter to the Joint Advocate Selection Committee where there is concern that the return was unreasonable.
Counsel's involvement in a part heard trial will not normally justify a return, unless the part heard trial has been prolonged due to unforeseen circumstances. Where an advocate is instructed in a part heard trial, the position must be kept under constant review, and the CPS fully informed, so that an early decision can be made by the CPS as to whether to require a brief to be returned.
The CPS aim to pay only once for the preparation of a case. However, in the case of a return there may be occasions when new counsel will have to carry out work already undertaken by previous counsel. The reviewing lawyer will consider whether this work should be remunerated on a case by case basis. The CPS will of course pay new counsel to read the case and conduct preparation not already undertaken by previous counsel.
When the CPS instruct counsel to attend an interlocutory hearing, including PCMH, bail applications, applications to make or break fixtures and mentions, counsel instructed in the case will, wherever practicable, be expected to attend. If instructed counsel cannot attend, then ideally another advocate from within the prosecution team, either external or internal, should attend. Where this is not possible any external stand in advocate should be expected to work within the terms and rates set out in this document.
Security of papers
The CPS shall determine on a case by case basis any specific requirements covering the security of papers and disposal of confidential case-related waste by counsel.
Secure e-mail
Secure e-mail is a service available to CPS staff and external partners that enables secure electronic communication of case related information that carries a 'restricted' marking. It is not permitted to use secure e-mail to transmit any case related information that carries a security marking higher than 'restricted'.
Counsel shall be expected to use secure e-mail when available - both to receive instructions and to communicate advice. Hard copies of documentary evidence (statements and exhibits), plus any served unused material will continue to be provided to counsel, unless special electronic presentation arrangements are made.
Counsel shall use secure e-mail for electronic transfer of 'restricted' case related information.
For information on how to register for secure e-mail go to the CJS Frontline website
Appeal committee
Counsel may appeal to the Appeal Committee on the following issues:
- the fee category assigned to the case;
- individual areas of work submitted in the Stage Plan;
- hours in dispute within the submitted Stage Plan;
- the level of counsel allowed for any item of work;
- disbursements;
- the decision of the CPS to delay payment because of quality of work records;
- the decision of the CPS not to remunerate counsel for work done by counsel previously instructed;
- the decision of the CPS to refuse payment for work undertaken that is not specified in the Stage Plan;
- the decision of the CPS to refuse to amend the Stage Plan;
- the decision of the reviewing lawyer not to pay pre-committal/sending preparation;
- appropriate levels of preparation during the trial.
The appeal should be in writing, setting out the details of the item(s) in dispute and giving reasons why counsel disagrees with the reviewing lawyer's decision. Any appeal must be lodged in writing within 14 days of communication of the original decision.
Within 14 days of receipt of the appeal, the reviewing lawyer will give his / her reasons for the decision in writing. The notice of appeal and reviewing lawyer's response will be sent to the Appeal Committee for consideration.
The Appeal Committee will be drawn from experienced prosecution barristers nominated by the Bar Council, a senior representative of the Crown Prosecution Service nominated by the Director of Public Prosecutions and a member of the Office of the Attorney General. The Appeal Committee, which shall comprise 3 members, plus a non-voting secretary, will consider written applications of appeal in the context of these Terms of Appointment, the reviewing lawyer's reasons, the appellant's reasons and any other relevant matters. Oral representations will only be made at the request of the Appeal Committee.
The Committee may (a) dismiss the appeal or (b) allow the appeal in whole or in part. The Committee shall give written reasons for its decision. Its decision may be by a majority and will be final and binding on all parties. However, the Committee may invite any party to submit further information before it makes its decision. Any such information must be supplied within 14 days of notification of the request unless the Committee specifies a different deadline.
