Overview

ARC Costs recently assisted in a Very High Costs Case (VHCC) for a matter regarding the removal of children from their parents following the death of their sibling which was caused by the negligence of the parents. Criminal Court proceedings for the death of the young woman took place alongside care proceedings for the siblings of the deceased. ARC Costs were subsequently instructed to deal with the issue of care proceedings costs during the course of, and on conclusion of public law proceedings.

ARC Costs prepared and submitted the VHCC to the Legal Aid Agency (LAA) on the listing of a Finding of Fact Hearing for 13 days, which secured increased funding for the Solicitor to in excess of £80,000 + VAT in costs.  This allowed the Solicitor to secure significantly increased payments on account to conduct these complex care proceedings and, on conclusion in late 2022, ARC Costs assisted with the preparation and submission of the final Bill on CCMS.

What are Public Law Care Proceedings?

Care proceedings are legal proceedings in which a Local Authority (such as a Council or Social Services department) seeks to have a child placed in their care or supervision, or for an existing care order to be continued. These proceedings are usually brought under the Children’s Act 1989, which sets out the legal framework for the protection and welfare of children. They are typically used when a child is considered to be at risk of harm, neglect or domestic violence, and the local authority believes that the child’s parents are unable or unwilling to protect them. The ultimate goal of care proceedings is to ensure that the child’s welfare and best interests are safeguarded.

Care Proceedings Costs

In care proceedings cases, Solicitors and Barristers are typically funded by the Legal Aid Agency (LAA), which is a government-funded organisation that provides legal aid to people who cannot afford to pay for legal representation. In such cases, the solicitor or barrister will claim costs from the LAA, rather than from the other party or the Local Authority.

The LAA has specific rules and regulations for the recovery of costs in care proceedings. The costs that can be claimed by Solicitors and Barristers are capped at legal aid rates, which are lower than the rates that would be charged for private work, albeit enhancements can be claimed where appropriate. The LAA will only reimburse costs that have been reasonably incurred and are necessary for the proper conduct of the case.

Solicitors and barristers must submit detailed bills of costs to the LAA for assessment, and these will be checked to ensure that they comply with the LAA’s rules and regulations. The LAA may also conduct an independent review of the costs incurred in a case, and may reduce or disallow costs that it considers to be excessive or unnecessary.

It’s important to note that even if the legal representation is funded by legal aid, the Family Court still has discretion to award costs in children proceedings, depending on the circumstances of the case. If the Court decides to make a costs order, it will not be capped at legal aid rates and the Court will take into account the financial position of the parties.

An example of an inter partes costs order being awarded in a care proceedings case was shown in the High Court case of Coventry City Council v X, Y and Z (care proceedings: costs) [2011] 1 FLR 1045, where parents of three children were awarded costs of £50,000 each. In this case, the Local Authority made an application for leave to withdraw proceedings in respect of two of the three children. This led the Court to believe that the Local Authority had not conducted an in depth investigation and due to this, the Judge held that the local authority had shown unreasonable conduct.

Very High Costs Cases

Very high cost cases (VHCCs) in legal aid refers to cases that are expected to cost significantly more than the standard £25,000 costs limitation.  For the avoidance of doubt, if there are multiple children involved in the same set of care proceedings, though they may each have a LAA funding certificate, only one of the certificates will cater for £25,000 costs, and the others will have a £0 costs limitation. Care proceedings are often complex and require a large amount of time and resources to be properly handled. Examples of cases that may be considered VHCCs in family/care proceedings often include proceedings involving lengthy Finding of Fact Hearings, issues of serious injury/abuse, or those involving significant expert evidence.

In family matters, including private and public law cases, all Junior Counsel, Queens Counsel, two counsel, and advocate cases are dealt with by the Very High Costs Case (VHCC) family team, though different event/hourly rates may apply dependant upon the type of case, number of final hearing days and advocates involved.

In VHCCs, the legal aid rates are increased to cover the extra costs associated with the case, either via enhancement (in family law cases) or through the use of events in public law cases. The Legal Aid Agency (LAA) has specific rules and regulations for the recovery of costs in VHCCs. The conducting Solicitor must submit a detailed draft case plan following notification to the LAA that the case is due to be high cost (in excess of £25,000).  This triggers an increase in the costs limitation up to £32,500 (though this has to be applied for on CCMS), and if more than this amount is needed for the future proceedings, then a draft case plan should be submitted detailing the future work required.  If high costs are likely to be less than £32,500, the draft VHCC can be submitted on conclusion of the proceedings.  On review of a draft VHCC, the LAA will complete an independent review of the costs incurred/sought in a case, and may reduce or disallow costs that it considers to be excessive, duplicative or unnecessary so as to reach an agreed maximum allowance for costs.

The main methods of costing these types of family law cases include:

• Care Case Fee Schemes – These are used in some child cases and private law cases which follow a fact finding route and main hearings can last more than ten days. Using a Costs Case Fee Scheme, events (each hearing date or advocates meeting) will have a set value and costs will be determined in reference to these events. The type of scheme used will depend upon whether the case is being executed by one single solicitor advocate or counsel, or two counsel or solicitor advocates or a Leading Counsel.

• Detailed (fully costed) case plans –These are used in case cases that the Legal Aid Agency has considered to be exceptional, typically in family cases. A detailed case plan will be required as soon as parties are notified that the case is a high costs case. The plan should detail all costs incurred to date on an hourly rate basis (usually in a CLAIM1), and set out a description of the case, prospects of success, issues to be investigated (both legal and factual), details of future costs, details of experts and Counsel used.  Future costs are to be set out in Stages, with completion of each stage requiring a separate further Bill to be costed and submitted for payment. 

It’s worth noting that whilst VHCCs are commonly come across, in the grand landscape of LAA work they are relatively rare and are subject to a strict eligibility criteria, and it is only awarded in the most complex cases. The LAA will only grant VHCC status to cases where the costs are likely to be significantly higher than the standard rates, and where the case is considered to be in the public interest.

How can ARC Costs Assist with Care Proceedings Costs

The ARC Costs team are a highly experienced team of Legal Aid Costs Lawyers and Costs Draftsman. We regularly assist parties throughout care proceedings costs cases and very high costs cases.

We assist throughout the process of recovering legal costs from the legal aid agency, including the submission of the case, obtaining interim costs, submitting final bills and uploading bills to the Care and Case Management Services (CCMS)

We can further assist in quantifying and negotiating inter-partes costs in legally aid funded cases. We are always happy to help with costs challenges/queries and can provide information on dealing with inter-partes costs in legal aid matters.

The team at ARC Costs are highly professional and our costs draftsmen and costs lawyers have the experience and expertise required to get the best outcome on your legal costs cases.

We can be contacted using our email address at info@arccosts.co.uk, or by telephone on 01204 397302.

For more information on legal costs, visit our services or legal costs page.

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