Official Report: Minutes of Evidence
Committee for Justice , meeting on Thursday, 22 October 2015
Members present for all or part of the proceedings:Mr A Ross (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr S Douglas
Mr Paul Frew
Mr Seán Lynch
Ms B McGahan
Mr Patsy McGlone
Mr N Somerville
Witnesses:Mr Richard Cushnie, Department of Justice
Ms Maureen Erne, Department of Justice
Ms Caroline McAuley, Department of Justice
Mr Mark McGuckin, Department of Justice
Civil Legal Aid Remuneration: DOJ Officials
The Chairperson (Mr Ross): Members should note that the Department has not finalised the proposals yet. It is still in discussion with the legal profession on a number of issues. It expects to be in a position to provide the Committee with the final proposals by mid-November. However, officials wanted to brief the Committee at this stage. I welcome Mark McGuckin, Richard Cushnie, Maureen Erne and Caroline McAuley. You will be aware that Hansard is reporting this session.
Mr Mark McGuckin (Department of Justice): Thank you very much for your introduction, Chairman.
The Committee is aware from various oral and written briefings of the work that we have been taking forward to develop a standard fee approach to remunerate civil cases at all court tiers. Our work at this stage has focused mainly on family cases, which make up 70% of the total cost. You will be aware from our briefing paper, and acknowledged in the Chair's opening comments, that we are not quite there yet, so I would like to take a few moments to explain what we are doing and the progress that has been made.
The underlying objective is to replace the existing mix of time and item assessment and composite fees with a standard fee approach that provides appropriate remuneration, reduces bureaucracy and improves predictability for the legal profession and the Legal Services Agency. We also need to reduce the overall cost of legal aid. The most appropriate way to do that is to use an evidence-based approach.
I want to be clear at the outset that, while we have made significant progress through intensive negotiation and engagement with the profession, further work is required before we can present our final proposals. We provided the profession with the draft only two weeks ago. As you have seen, it is not final. I do not want to give the impression that the profession has endorsed all our proposals. However, I do want to take the opportunity to recognise the time, energy and expertise that both branches of the profession have devoted to this work over the past months. I think that the time and effort that has been invested reflects our shared determination to work together to develop a robust model rooted in statistical evidence and operational experience.
From our perspective, there is a need to get the balance right between the remuneration paid for work necessarily and properly done and the budget available to meet the costs arising. We needed to address a number of challenges in achieving that balance. There is a wide range of family proceedings type, and complex variations and cost drivers within those proceedings. In our discussions, the professions raised a number of concerns, which include any reduction in the levels of remuneration; the level of the single standard fee proposed in certain cases; the baseline data that was being used; the potential impact on the profession; and the interaction with other reform initiatives.
We have listened to all those points. The proposals are still based on a standardised fee approach based on the 2010-12 payment data, but compared with the draft proposals that we shared with you in June, the new proposals contain a number of significant adjustments. For example, we tested some of the analysis against 2012-14 data to give the profession greater confidence in the baseline data. The statistical analysis was underpinned by 1,200 individual file reviews and by detailed discussion and engagement with stakeholders, in particular the Law Society and the Bar Council. We have adopted an open and transparent approach in which we have shared our data with the profession's forensic accountants, and, when necessary, we re-ran and rechecked the proposed fees and adjusted them accordingly.
We have refined the proposals in response to in-depth and ongoing discussion. For example, it was argued that, in some types of case, there was a significant variation in costs to the extent that, even when adopting a swings-and-roundabouts approach, a single fee would not properly remunerate the more serious cases. Consequently, we have proposed tiers of fees reflecting complexity. Case types or proceedings that the profession told us merit the individual fee have been provided for accordingly. We retained and further developed provision for remunerating exceptionality in complex cases, and we are committed to reviewing the proposals every three years or sooner if the fees require adjustment.
In some areas, we listened to representations and agreed to retain the current arrangements. One example of where we are not proposing to make any change at present, in response to representation from the Bar Council, is the remuneration for counsel at the family proceedings court. The Committee will recall that, last year, new guidance was issued about the use of counsel at each court tier.
It is accepted that most cases in the family proceedings court can be carried by a solicitor. Previously, counsel was being certified at around 18%, and the new guidance was expected to reduce this to 10%. However, the evidence would suggest that it was reduced to less than 1%. The reason for this is being explored, and the agency has issued a further circular to make the guidance clearer. In the interim, we have agreed to retain the existing fee structure for counsel while a sufficient number of cases are completed in the family proceedings court in order to facilitate a proper analysis.
As I noted at the outset, we have made very significant progress and our proposals have altered substantially, but there are still a few items that we need to resolve. The main issues are identifying a robust set of factors to delineate between cases that would attract the relevant lower or higher standard fee, the architecture of the family care centre and High Court standard fee payment regimes, distinguishing between hearings before a master or judge in High Court proceedings, matrimonial proceedings, and exceptionality arrangements. We are continuing to work with the profession on these outstanding issues, and we are scheduled to return to the Committee on 26 November with a final proposal.
I will say a few short words about savings. As well as delivering a new fee structure, one of the objectives of this work is to reduce overall costs. The initial target had been a reduction in the region of 20%. However, reflecting on the need to balance a number of factors, the likely savings will be lower than this. The projections will be finalised once the outstanding aspects have been resolved and we can see the interaction of the various new fees.
We are very aware of the potential impact of this major project. Our initial impact assessments, which were conducted in 2013, did not identify any adverse regulatory, rural or equality impacts. A further updating of those assessments is under way, which will reflect and incorporate the response to the consultation and the significant changes that we have made to the approach.
I would like to have been in a position to present the final proposals today, but given the very helpful ongoing engagement with the profession and the extent to which the original proposals have been amended, that has not been possible. In light of the number of meetings that we have had and the amount of information that is shared, I am, however, satisfied that these are, subject to the few issues that I mentioned previously, our near final proposals. We will continue to work with the profession over the coming weeks to finalise the proposals and submit a definitive version for your consideration. That document will provide the basis for the drafting instructions for the necessary regulations, which, in themselves, will be subject to consultation with the statutory consultees, the Bar and the Law Society, offering a further opportunity for refinement before we finalise them in time for March.
I am happy to take questions, Chairman.
The Chairperson (Mr Ross): Thank you very much. A couple of members have indicated that they wish to ask questions. Just before I open it up, you mentioned that the projected reduction will be closer to 15%, rather than 20%. What is that in monetary terms? How much is that worth?
Mr McGuckin: At this time, the spend on family matters is around £35 million. You are looking at a saving of somewhere between £5 million and £7 million. We said 15%, but it could be slightly lower than that again.
The Chairperson (Mr Ross): You mentioned working with the Bar Council and the Law Society. What are the areas that they have moved from initially? There did not seem to be an awful lot of agreement early on in this. Where have they shown flexibility in closing the gap with the Department?
Mr McGuckin: It is a process of going through the very detailed and complex areas of the fees, what the drivers are for those fees and how we bring forward proposals. We have responded to concerns that they had, for example, around the breadth of a single fee and the number and types of cases that it needs to remunerate. We have split those fees into two, so there is a lower fee and a significantly higher fee, where that is appropriate. There is a lot of detail in it, and it is hard to pick out a specific hard-hitting example of where the profession has particularly —
Mr Richard Cushnie (Department of Justice): It is fair to point out that they received this version of the draft only a couple of weeks ago and we are still in discussions with them.
We met the Law Society earlier this week. So, they need a little more time to reflect. At each stage, we have been trying to take on board the concerns they have and to adjust the proposal accordingly. I think that now is the opportunity for them to reflect on whether the structure as a whole and the fees that we have proposed meet their concerns.
Mr McGuckin: I would take a step back. The proposal that the Bar and the Law Society responded to substantively in the past was the one that would effectively have taken the Crown Court system and applied it to the civil cases. We have effectively withdrawn that. In fact, we have withdrawn that as a proposal. The new set of proposals that we have been in discussion with them about for some considerable time now is based on an evidence base of the cases that run through the civil area, so they are significantly different. The Committee may have written to them earlier in the year for some comments, and, to be fair to them, they have not commented substantively on them yet because they have not seen the colour of the final proposals at that stage.
The Chairperson (Mr Ross): You said, and it is stated in the document, that there is no change at this stage to remuneration for counsel at the family proceedings court. There were reforms in that area previously. Some would argue that they were detrimental reforms. I know that you need to do a proper review of that, but is there initial feedback on how that has impacted the public or what barristers or solicitors are saying about the impact of that reform on the ground, as it were?
Mr McGuckin: It is fair to say that the Bar has been particularly vocal in raising with us the impact that the levels of representation guidance had on the number of barristers in the number of cases where barristers are certified at the family proceedings court. To put a bit more detail on that: before the new guidance was introduced, the level of certification of counsel had been running at around 18% of cases in that court tier. We anticipated that, with the new guidance, around 10% of cases would attract counsel, give or take. As I said in the opening comments, that is currently less than 1%. We think that, in part, that is down to the number of applications being made by solicitors, which has reduced. Only 6% of cases are coming forward where solicitors are seeking counsel in the family proceedings court.
There are issues that need to be addressed in how they are making the case for representation. The Legal Services Agency issued further guidance, earlier this year, to seek to address any shortcomings in order to improve the way in which those applications were being made, but I am not sure that it has had any significant impact. Solicitors have mentioned it to us, but clearly not to the same extent that the Bar has.
The Chairperson (Mr Ross): In terms of an impact on a family or individuals, obviously, removing a child from the home is one of the most significant things that a court can do. The document seems to suggest that there is a greater reduction in the funding for representation in cases regarding freeing for adoption. Is there a reason for that?
Mr McGuckin: The fees that we have set out there are based on a detailed analysis of the actual costs in individual cases over the two- to four-year period that we have talked about. As for the detail of that particular fee, I cannot recall the exact reduction.
Ms Maureen Erne (Department of Justice): Is that at the family care centre as opposed to the High Court?
Ms Erne: In the way that we have approached the analysis at those two court tiers, because, in the High Court, we had a body of time and item assessed bills, we were able to run the analysis, exclude some of the lower-value payments and higher payments, look at what was representative of the body of cases that was left, derive proposed fees on that basis and then look back. What we wanted to look at was the consistency between the two court tiers — the family care centre and the High Court — bearing in mind that we need to make a level of reduction in civil legal aid expenditure.
We tried to look at where the fees were derived at the High Court and how they would sit alongside those proposed at the family care centre, which is the lower court tier, and make proposals on that basis. The difference at the family care centre is that, because there has been a standardised fee regime in place there, we did not have the same visibility around the work inputs to analyse on the same basis as the High Court payments.
Mr McGuckin: We are still working through some of those detailed figures, and they may well be adjusted before we present the final proposals to you.
There is another point to make. If a large body of cases is falling within a particular target area and the fee is set because of that, the overall average might be increased or upset because you have an outlier or several outliers. We are making arrangements for provision for those outliers to be dealt with separately outside the standard fee approach, so that, if there is a case that is more complex, has more inputs and has more difficulty, the standard fee will not necessarily apply, but it can be remunerated at a different level.
The Chairperson (Mr Ross): Finally, if Alban were here, he would talk about exceptionality and its importance in certain cases. You mentioned it briefly in your opening comments. Can you give us more detail on how that issue will be addressed, particularly in the High Court?
Mr McGuckin: We are working through those proposals at the moment. As you are aware, we have been consulting on exceptionality arrangements for the Crown Court, and we have borrowed some of the material and are looking at the responses to that consultation as we develop the arrangements to operate within the family courts. The intention is that, once we have identified what the necessary triggers are, and there is a bit more work to do around that, we will effectively take that case out of the standard fee approach. Again, we are working on the detail of that, and that is one of the points that we need to address with the profession over the next two or three weeks. That will probably be operated on a time and item basis, so that you are actually reflecting the amount of work that is involved in that particular case and not trying to knock it into a swings-and-roundabouts approach.
Mr Lynch: You mentioned tiers of fees — lower and higher. How will they be determined? Will there be criteria around those, and who will decide?
Mr McGuckin: Do you mean, once the fees have been set, how do you move between the two tiers?
Mr McGuckin: There is a range of different cost drivers within cases, and, again, that was quite a complex area. When we started to do the detailed file surveys and identified all the factors that can have an impact on a case, we found that they were mirrored in the low-cost cases and in the high-cost cases. What we have been doing over the last couple of months, and we are in the process of finalising that now, is to identify the drivers that would move it up into the higher fee, and there will probably be a range of those. In each case type and in each court tier, we need to look for what those factors are, specific to the case.
The plan is, as far as possible, for the legal representative to be able to identify those at the outset, so that they know when a case falls into the higher bracket and not the lower bracket. It would then be a case of making that application to the Legal Services Agency for it to be agreed that that is the case and how it works out.
Mr McGuckin: Yes, indeed.
Mr McGuckin: There will certainly be an internal review system in the Legal Services Agency. Very experienced adjudicators operate in the agency and look at cases as they come in. They would make the initial assessment. If the representative is not content with that, there will certainly be a review mechanism within the agency itself. We are looking to see whether it is appropriate and proportionate to have a further appeal to something more independent, but we have not finalised that just yet.
Mr Lynch: So, it is a work in progress. When do you think it will be done?
Mr McGuckin: We are trying to finalise that over the next couple of weeks.
Mr Douglas: Thanks very much for your presentation. In the report that you sent us, you say that you have had numerous discussions, literally on a weekly basis, with the Law Society and the Bar Council. Mark, you are saying that you are hoping to bring the final proposals to us in November, but there are still some outstanding issues here. I can identify at least four. How far down the road, as a percentage, do you think you are in getting an agreement, if that is the word? For example, during the talks here, somebody came out and said that we had 95% agreement, and, two days later, the talks collapsed. What level are you at currently in getting an agreement with these two organisations?
Mr McGuckin: I guess that we could be guided on the impact of predicting a percentage by what happened in the talks, so I will not attempt to do that on this occasion. I am also tempted to say something else, but I will not. We are a good way along the track of reaching a conclusion. You asked how close we are to getting agreement. I do not think that we will ever get complete agreement. We are seeking to get the structure in place. I think that the legal profession is reasonably content with the approach of a standardised fee arrangement that is predictable, provided that there is sufficient flexibility in there to deal with those exceptional cases that we have just been talking about. The profession will have continuing concerns about the levels of fees that it is set, particularly where we are trying to use this to help us to reduce the overspend on the budget, so we are trying to bring the fees down a bit. We have reduced the level of savings that we are trying to get out of this, and that is significantly through the engagement that we have had and looking at the detailed analysis of the costs of cases and the payments that have been made in the past.
Mr Douglas: In your discussions with the profession, are there any big issues that could cause difficulties if you do not come to an agreement?
Mr McGuckin: The big issues are getting a consensus on how we deal with exceptionality and those areas for moving between the two tiers of fees. I think that those are probably the two biggest issues that we have on the table at the moment. It is no surprise that we have been working through those, because it is complex, and it is challenging to try to separate them out. There is not that one factor where you could say that, if that applies, you automatically move to the next level. You need a more sophisticated approach than that. But we have been engaging very closely with the profession. It is something that we had been talking to them about at the very outset of the discussions, and then it went away and we came back into it again over the summer period. We have moved significantly on how that structure will work, in response to their representations and the evidence that we have uncovered ourselves. That is going to be the trickiest bit to resolve, I guess, over the next couple of weeks. We have had further discussions with them, and we are meeting again next week. We need to get a further meeting with the Bar. We will be putting it to them, and, hopefully, that will get us to the right place.
Mr Douglas: You are not at the stage of bilateral meetings now. My second question is this: how do the proposed standard fees that you have presented here compare with the other devolved Administrations in the United Kingdom, Wales and Scotland?
Mr McGuckin: There is a regime operating in England and Wales and a separate one in Scotland. Scotland is very different because it has a family hearing system. I cannot remember the correct title of its approach. It sits outside the courts and is a very different approach from ours. The regime in England and Wales has taken significant numbers of cases and issues out of the scope of private family law. So there is no longer any sort of direct comparator there.
They have similar cases in public family law but, given the way that the structures and systems operate, it is more difficult to draw a comparison between what is operating there and what is operating in Northern Ireland. We did quite a lot of work at the very outset of this, going back to early 2013, in looking at the regimes to see whether we could lift the fee regime that operated in England and Wales and apply it in Northern Ireland. At that stage, we concluded that it would not be appropriate. I am not sure how far it will influence our structures going forward, but we plan, when we have this finalised and get a bit of breathing space, to see whether we can have a quick look at England and Wales to draw any comparisons from it. However, we are not confident that it will give us any information that we do not already have. Effectively, we have been into the detail of individual cases and the way they run in Northern Ireland and, therefore, the fee structure reflects that.
Mr McGlone: Let me take you back to the issue of reducing the costs of legal aid by the evidence-based approaches, or appraisals, that was the word you used. Just run me across how that is being done.
Mr McGuckin: In terms of the civil fees?
Mr McGuckin: There are many different case types operating in the family system. We have gone in and looked at the details of the payments made over the two- or four-year period, depending on the particular types of case we have done. We have looked at how those cases have been made up. We have gone back into the case files to see the cost drivers and work through the detail of the costs involved.
Mr McGlone: Is this the 1,200 files that you are reviewing?
Mr McGuckin: That is part of the overall thing, but we have looked at all the payments for all the cases. Maureen has been involved in the minutiae of this for a considerable period. From that, we have sought to try to construct the new standard fee approach on a swings-and-roundabouts basis.
Mr McGlone: OK. I just want to get the process by which you are doing this clear in my mind. You said that you were referring it to forensic accountants, acting on behalf of the Law Society and the Bar Council. Is that all part of the consultation around these proposals?
Mr McGlone: It is one and the same thing? There is not a twin-track approach or anything like that?
Mr McGuckin: It is the same thing. If it would be helpful, let me take a step back and explain. We have amassed an awful lot of information and data relating to all of the case types, and there is a myriad of spreadsheets, analysis and statistical analysis of all those cases, fee types and costs. From that, we built our proposals, which we shared with the Law Society and the Bar Council. The first question we were asked was this: "Can we see your working information?" So, we provided them with all of that working information. At an early stage, the Bar Council engaged a forensic accountant, and this goes back to summer last year, does it not?
Ms Erne: I cannot quite remember.
Mr McGuckin: Yes, it was summer 2014 when we provided all the basic information that we had built our new structure on. It was given to the Bar's forensic accountant. She has been engaged in the vast majority of the discussions, if not all, that we have been having with the Bar, so it is an integral part of the process. We give all our data; they check it, come back, challenge it and test us. We have made corrections and adjustments as a consequence of that, because they have looked at it in a slightly different way.
Mr McGlone: That is what I was trying to get to the bottom of. Is the Law Society engaged in a similar process?
Mr McGuckin: It is, but it has come to it somewhat later and waited until we had firmer detail on the proposals. Equally, we provided the Law Society with all the base data, the spreadsheets, the analyses and so on, from the very start of this process. It has only recently brought in a forensic accountant to give some advice.
Mr McGlone: Thank you for that, but I am trying to get a handle on the process; where it is going and where it is coming from. In relation to a time frame for all of that, clearly the Bar Council was in at the start and has looked through quite a bit of this stuff. The Law Society is now paying a forensic accountant to go through the detail. It would make sense to wait until you have the evidence-based stuff and all of the detail. I noticed that you avoided using the word "vehement" earlier when it comes to these matters. You are not talking about stringing this out forever, but you want to make sure that any decision that the Department makes is clearly evidence -based and that none of that evidence is flawed in itself. I am glad to hear that both parties now — the Law Society and Bar Council — have adopted that approach. have you any reasonable time frame for that to be brought to finality?
Mr McGuckin: We are seeking to conclude our discussions over the next two to four weeks.
Mr McGlone: Do you anticipate that the Law Society will have completed its work within that two to four weeks?
Mr McGuckin: Well, the Law Society and —
Mr McGlone: You will appreciate the point I am making. It would be —
Mr McGuckin: The question seems to assume that the Law Society is somewhere behind the Bar Council in its analysis.
Mr McGlone: All because I started with the fact that you said it had started later.
Mr McGuckin: I think that I said that it brought in its forensic accountant later, —
Mr McGuckin: — when the proposals were at a more advanced stage. I am not sure how long it will take the forensic accountant to go through it, but that person is actively engaged on it currently and is engaging with my team in clarifying any of the issues that arise. Because of the work that has already been done, the Law Society — bearing in mind that its team has been engaging with us on this issue — has had all of that detail. Its team have been going through it in some detail and making pertinent, relevant and intelligent observations and representations to us as consequence of access to that detail. I suspect that the forensic accountant was brought in at the end of the process just to quality-assure that, rather than the approach that the Bar Council took, which was engage that person in the team to advise it, going forward.
Mr McGlone: I do not know why, but I presume that they are checking the figures, as would any accountant. My point is this: if they are close to finality, would it not make sense to wait until they have completed their process before any further decision is made around this?
Mr McGuckin: I am hoping that the society will complete its process over the course of the next couple of weeks, as we are working with it on this.
Ms Erne: The original data was shared in January. So, in early discussions with the Law Society we took people through the data, how we had broken it down and how we would direct payments. We were talking through, then, the kind of operational implications of some of the assumptions that we had made about developing the fees. There may have been a different approach, but we have essentially been working through very similar issues.
Mr McGlone: So, do you anticipate that before you make a final decision around these issues you will have in place an evidence base that has been forensically analysed by an account on behalf of the Bar Council and the Law Society?
Mr McGuckin: We are comfortable and content that, from the work we have done, we already have an evidence-based approach. We have engaged closely with representatives that the Bar Council and the Law Society have put forward in their teams. They have commented in detail on the proposals that have come forward.
Mr McGlone: That was not what I asked. I asked whether you are prepared to wait until the Law Society's forensic accountant has completed his or her work before any further decision is made on this.
Mr McGuckin: We will work with the Law Society to help it to achieve that sort of an outcome, but we cannot just park it and sit and wait until the society has finished. I think that it is planning to have its accountant finish their work within that time frame.
Mr McGlone: Is there not a wee bit of a contradiction in what you said there? You cannot wait until the Law Society is finished but you anticipate that it will have it finished. What is it? Sorry, I am not trying to be — I just want to get this absolutely clear because, to my mind, it makes sense to make sure that you have all the evidence in front of you. Most people would want that evidence forensically accounted for, if it is the case, before you make a final decision.
Mr Cushnie: I was going to say that there is a balance to be struck between the amount of time that has gone into the discussions so far, the amount of time that the Law Society and the Bar Council have already had to look at the proposals and the amount of time for us to be able to implement the next steps in terms of regulations and to bring the proposals into implementation phase. If you leave it too long at this stage, it will shorten the amount of time further, and you have to balance that against the amount of time we have spent so far engaging with them.
Mr McGlone: You are anticipating that the Law Society will have it within the next two to three weeks. That is what I am hearing, in some way.
Mr McGuckin: I cannot dictate to the Law Society how quickly it concludes its work. I know that its forensic accountant has been engaged, and I know that that person has been engaging with the team from the Department that is working on the detail of this. I know that all the information that we have has been shared with the Law Society. How long it takes it to go through that is a matter for the Law Society. Yes, it would be useful if it had completed that before we conclude the discussions with them. If there is a couple of days in it and we can achieve it, that is fine, but if it is longer than that and we are in a position to move forward, I am not sure that we would want to delay it any further.
Mr McGlone: Chair, it might be useful to get an indication from the Law Society on the sort of time frame it is working to on this, if that is helpful.
Mr McCartney: I am trying to understand the process. I refer to table 2 in the solicitor's pack. Is there a table on what the first offer was? Could we get sight of the first proposal?
Mr McGuckin: There is absolutely no reason why not. It has changed significantly since then on the basis of the discussions we have had, but I think that we may have shared it with the Committee previously. We can refresh that.
Mr McCartney: You possibly have. I am only asking you. Instead of me going back over my packs, I thought I would ask you.
Ms Erne: There are two previous versions. The first version was issued to the profession last November, and we then shared all the underpinning information in January and engaged in discussions from that point. In light of those discussions, we updated our analysis and issued a revised version to the profession in May. This document follows a further period of discussion and a refinement of the proposal. You will see examples of variation from what we originally proposed back in November through to this document.
Mr McGuckin: There are some significant variations.
Mr McCartney: That would be useful to help us see the discussions that developed. Is the fee worked out on how many hours you feel it would take for each of the orders?
Mr McGuckin: It is based on analysis of actual spend and actual cases that have been paid in the past, and that is why we have spent so long. We have gone through that level of detail and looked at the payment data, which is relatively easy to extract, and, when necessary, have gone back. That is where the reviews of the 1,200 files come in. We look at the detail of that to understand where the cost drivers are, and so on.
Mr McCartney: In your estimate, £870 features in the majority of the table. You estimate that, in all those aspects of the public law proceedings, they all take the same amount of time to carry these out.
Mr McGuckin: We do not estimate that they take precisely the same amount of time or have precisely the same inputs. The analysis has showed, working on a statistical basis, that the £870 would represent a range of payments that had been made before. So, on a swings-and-roundabouts approach and in trying to put in a standard fee, the £870 represents the appropriate standard fee in the middle of that range of payments.
Ms Erne: The £870 appears a number of times because there were a number of proceedings within that list that occurred very frequently or did not occur at all in our payment data set. In order to provide a fee, we had mapped those to the lowest fee grouping and, pending submission of claims, we would revisit that.
Mr McCartney: It would be good for us to see the uplift and how the discussion proceeded.
Mr McGuckin: Some have gone up, and some have, potentially, gone down.
Mr McCartney: Table 7 shows that, in dismissed cases, advice of less than an hour is £45, advice of one hour is £50, and advice in excess of one hour is £55. Does that not make it a bit bureaucratic for yourselves, rather than taking the mean of £50?
Ms Erne: This is one of the issues that the Law Society raised with us when we were with them most recently. This is a set of fees that we decided to retain from the existing fee schedule. However, we think that there is an inconsistency in the rates for dismissed cases on that page, so we are going to take that away and have another look at it. It does not sit well with the other proposals in the paper.
Mr McCartney: Paragraph 2.18 gives the travel rate for solicitors travelling to a court other than their local court. Will court estate rationalisation have any impact? Have you factored in the impact of that?
Mr McGuckin: No, but it is being measured within the court estate project. I engaged with the chief executive of the Court Service on this very point yesterday. Solicitors, in particular, make the very valid point to us that, if certain courts change, that changes the travel arrangements. There are some quite intricate arrangements on what is termed your local court, when you get travel and when you do not get travel. The closure of the courts will impact on that. That is one of the issues that needs to be covered in its impact assessment, and we are alert to that.
Mr McCartney: So, it could go either way. It could increase your costs. Closing a court might bring a different rationale if it is a marginal difference.
Mr McGuckin: Yes. There are probably swings and roundabouts across the profession and the whole body of solicitors, but it could have an adverse impact on an individual solicitor.
Mr McCartney: In terms of exceptionality, I take it that that is laying provision in case, with any of these fees, it becomes more protracted or more complex. I do not want to pick one above the other, but is it so that, if, say, non-attendance at school becomes complex and lasts longer than you have in your matrix, there is provision for that?
Mr McGuckin: I do not imagine that that type of case would be there, but you will get some cases that just keep going and going and that a whole range of things come into it. There have been some very expensive cases at the lower court tiers, which surprised us when we started unpacking it. At the High Court as well, you have a body of cases within a bracket and then these ones that sit outside. Those are the ones that we really need to make additional provision for.
Mr McGuckin: We cannot do it without it.
Mr McCartney: I am sure that nobody can predict the outcome but — I nearly sound like I am talking about peace processes here — are the Department and the two bodies sitting down together so that you do not end up with one body saying that it is a good measure and the other saying that it is a bad measure and we do not go forward?
Mr McGuckin: We are speaking to them bilaterally, because the fees operate differently in each of the areas. I suspect that, where there is commonality, they talk to each other. However, we are speaking to them individually about the way that the remuneration impacts on them. I do not want to give the impression that we are going to go out and then, in three weeks' time, we will have agreement and be able to come to you and say that this is agreed between the Department and the two professions. There will be issues that they will be uncomfortable with. They will be uncomfortable with any reduction in fees. However, we want to try to get a structure in place that everybody can sign up to as much as possible. We want a commitment to keep it under review and then as much agreement as possible that the fees are in the right area.