LSC Enhancements for Clinical Negligence Matters

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I have received feedback from clients in relation to difficulties they have encountered with assessments of LSC matters where they have claimed enhanced rates. There appears to be an increasing trend on assessment, particularly when the assessment is carried out by the LSC, to reduce and/or disallow enhancements in some clinical negligence and other complex matters.

I believe that the reason for this lies in the LSC's interpretation of Regulation 5 of the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994.

These Regulations set out the circumstances under which fees at more than the prescribed rate may be allowed and include in Regulation 5(7) a statement that "The relevant authority may have regard to the generality of proceedings to which these Regulations apply in determining what is exceptional within the meaning of this Regulation."

In my view this ought to mean that virtually all clinical negligence cases should come within the factors detailed in Regulation 5 and should qualify for some enhancement. They should not be compared with other clinical negligence cases but should be compared with "the generality of proceedings ... ".

The guidance given to assessors by the LSC however indicates that when dealing with a claim for an enhanced rate due to exceptional circumstances, an assessor should look to see what makes the case exceptional as compared with other clinical negligence cases. To my eyes this appears at odds with what the actual Regulations say and my advice is that in making a claim for an enhanced rate, reference should be made to Regulation 5(7). The same can be said when applying for a review of an LSC assessment.

Although the case was not taken under Regulation 5(7) of the Regulations, the decision in R -v- Legal Aid Board ex parte R M Broudie & Co [1994] is useful in that it was held that in deciding whether a murder case was exceptional, one compared it with the ordinary run of criminal cases generally and not with other murder cases.

When quantifying a percentage increase over prescribed hourly rates, it should be borne in mind that the maximum percentage enhancement that can be claimed is 100% in the County Court or 200% in the High Court. If therefore you have a matter in which proceedings would have been or were commenced in the High Court, then it should be remembered that the maximum enhancement is 200% and that although this would be for the most complex of matters, a difficult clinical negligence case ought to attract a reasonable enhancement.

I am also aware that on some assessments of Claim1s where proceedings have not been issued, the LSC will not allow anything more than County Court rates which has the double effect of both reducing the prescribed rate and also reducing the maximum enhancement which can be allowed. I have successfully appealed this in the past on matters where proceedings would have been issued in the High Court.

It is important to remember that in the case of clinical negligence matters they do not have to have a value in excess of £50,000.00 before they can be issued in the High Court pursuant to Section 5(3) of the High Court and County Court Jurisdiction Order 1991.

A point of principle on this point has now been published. The LSC publication "Focus" reported, in volume 51, Point of Principle CLA43 which states "if there is clear evidence on the file that litigation, if issued, could only or would have been issued in the High Court, then it should be paid at the High Court prescribed rates". In matters where any proceedings are likely to be commenced in the High Court it would therefore seem wise to put some file note to that effect on the file so that if a Claim1 is being prepared at High Court rates they ought to be allowed in accordance with that point of principle and not reduced to County Court rates.

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