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Funding for Legal Representation
1. This note sets out the procedures the Inquiry will adopt in relation
to requests for funding for legal representation from Interested
Parties and Witnesses and is divided into the following sections:
Section One: The scope for legal representation in the Inquiry
This section outlines the broad areas of work for which payment
of costs will be considered.
Section Two: General principles governing requests for funding
This section sets out the principles that Lord Laming will apply
in considering whether to recommend to the Secretary of State that
funding for legal costs should be granted.
Section Three: Applications for a recommendation for funding
and the procedure for agreeing the level of funding
This section explains what Interested Parties and Witnesses should
do now if they wish to make an application for legal funding, or
if an application has already been made. It also sets out the information
Interested Parties and Witnesses must provide to enable Lord Laming
to consider whether a recommendation should be made, and arrangements
for notifying Interested Parties and Witnesses of Lord Laming's
recommendations and subsequent decisions of the Secretary of State.
Section Four: Billing procedures
This section tells Interested Parties and Witnesses what to do once
a recommendation for funding has been accepted by the Secretary
of State.
Section Five: Procedure for the assessment of costs
This section describes the process for scrutinising claims for costs
and what action will be taken if a disagreement arises.
SECTION ONE: THE SCOPE FOR LEGAL REPRESENTATION IN THE INQUIRY
2. As Lord Laming said at the preliminary meeting on Thursday 31
May 2001, the role of legal representatives for Interested Parties
is likely to be limited to the following:
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A time limited opening statement.
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Suggesting lines of questioning to be put by counsel to the
Inquiry.
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Suggestions for additional witnesses.
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Time limited re-examination of own witnesses.
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Time limited final submissions.
3. It is recognised that legal representatives for Interested Parties
may also be involved in the following work:
4. The involvement of legal representatives of Witnesses is likely
to be limited to the following:
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Preparation of a witness statement.
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Consideration of what Inquiry documents their client may need
access to and consideration of such documentation.
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Representation of the witness during their evidence.
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Time limited re-examination of own witness.
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Responding to notices of potential criticism.
SECTION TWO: GENERAL PRINCIPLES GOVERNING REQUESTS FOR FUNDING
5. The principles that the Inquiry will apply in considering an
application for a recommendation for legal funding are as follows;
(i) This is an inquisitorial Inquiry where the scope for involvement
of legal representatives is limited. Applications will be considered
on this basis.
(ii) Recommendations are envisaged in cases where Lord Laming decides
that representation is necessary and there are no other means by
which such representation can be funded. As Lord Laming stated at
the preliminary meeting, he does not envisage making a recommendation
in respect of any public body, any commercial concern or any substantial
trade union or staff association.
(iii) All legal representatives will be expected to work in a cost-effective
manner avoiding both unnecessary duplication and work not reasonably
necessary to the representation of their client.
(iv) Save in exceptional circumstances, funding will only be authorised
at assistant solicitor level and, if it is considered necessary
to instruct counsel, at junior counsel level.
SECTION THREE: APPLICATIONS FOR A RECOMMENDATION
6. Any Interested Party or Witness who wishes to make such an application
must do so immediately. They should specify the following;
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The level of seniority of the solicitor who will deal with
the case and his/her proposed hourly charging rate.
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Where it is thought necessary to instruct counsel, the reasons
for so doing, the date of call and his/her proposed hourly rate.
(It is likely that the employment of counsel will only be funded
on the basis of payment for time spent.)
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The number of hours for which it is anticipated a solicitor
will be engaged on Inquiry work.
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The number of hours for which it is anticipated counsel will
be engaged on Inquiry work.
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Particulars of any other foreseeable expenses.
7. A number of Interested Parties and Witnesses have already invited
Lord Laming to make a recommendation for funding. Any of those who
have not already provided the above information must do so now.
8. Once the request has been considered, the applicant will be
notified as to whether a recommendation for funding has been made
by Lord Laming and the terms of any such recommendation.
9. The Interested Party or Witness will then be notified whether
the recommendation has been accepted by the Secretary of State,
and the terms on which public funding has been approved and is offered.
10. Expenditure before or in excess of such approval will not normally
be recoverable.
11. It will be open to Lord Laming to make further recommendations
to the Secretary of State at any stage. In particular, he may recommend,
either initially or at any time (including after the acceptance
of the initial recommendation by the Secretary of State), that a
cap be imposed on the grant of funding for representation. This
may amount to an overall financial limit and/or a limit on the number
of hours to be spent on Inquiry business.
12. All public funding is subject to the condition that the Interested
Party or Witness concerned agrees to be bound by the decision of
the Costs Judge if the Crown chooses to refer any disputed matter
to him in accordance with paragraph 16 of this note.
SECTION FOUR: BILLING PROCEDURES
13. Once an application for funding has been approved by the Secretary
of State, the Interested Party or Witness concerned will be requested
to submit bills on a monthly basis to the Inquiry Secretariat. Those
bills should contain the following:
(i) A breakdown of the number of hours worked by each person on
each day specifying, in each case, the area of work undertaken.
It will make assessment easier if this is done by reference to the
work areas set out in paragraphs 3 to 5 of this Note.
(ii) The hourly rates charged by each person. These hourly rates
will be those specified by the Secretary of State in his acceptance
of the recommendation or otherwise agreed with the Inquiry Secretariat
in advance.
(iii) A list of all disbursements claimed. The prior approval of
the Inquiry Secretariat must be obtained in respect of any disbursements
in excess of £50. Disbursements in respect of which such approval
has not been obtained will not be refunded.
(iv) Where work has been undertaken by counsel, details of his or
her fees (supported by fee notes which must specify precisely what
work was done and how much time was spent on it).
SECTION FIVE: ASSESSMENT OF COSTS
14. The Secretary of State has delegated to the Inquiry Secretariat
and the Treasury Solicitors the task of assessing claims for costs
following acceptance of any recommendation. Following an initial
assessment by the Inquiry Secretariat, bills of costs will be scrutinised
by the Treasury Solicitor's Costs Team.
15. Save in exceptional circumstances costs will be assessed in
accordance with the standard basis as follows:
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Costs will only be allowed which are proportionate to the
matter in issue
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Any doubt as to whether costs have been reasonably incurred
or are reasonable or proportionate in amount will be resolved
in favour of the paying party.
16. Where agreement cannot be reached between the Inquiry Secretariat
or Treasury Solicitor's Costs Team and an Interested Party or Witness
on a bill of costs, the Chief Costs Judge will normally be requested
to arrange for a Costs Judge to conduct a contested adjudication
to determine the matter. This will depend on the Crown and Interested
Party or Witness indicating that they are prepared to be bound by
the decision of the Costs Judge (as to which see paragraph 12 above).
17. Failure to follow the guidance set out in this note could result
in payment being delayed or refused.
Mandy Jacklin
Secretary to the Inquiry
Monday 9 July 2001
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