Out of Time Claims
How the NTT will deal with claims lodged outside the statutory time limits
Important notice to Criminal Legal Aid practitioners regarding out of time claims and requests submitted to the NTT
- ex post facto claims for costs and fees
- requests for redeterminations
- requests for written reasons
The time limits within which any of the above acts is required to be done are to be found in the Criminal Defence Service (Funding) Order 2001 and the Criminal Defence Service (Funding) Order 2007as follows:
- Litigators claims are to be submitted within 3 months after conclusion of proceedings (paragraph 11 schedule I) / (article 6(3))
- Advocates claims are to be submitted within 3 months after conclusion of proceedings (paragraph 14) / (article 5 (3))
- Requests for redetermination are to be submitted within 21 days of receipt of notification of costs payable (paragraph 20(2)) / (article 29(3)(a))
- Requests for written reasons are to be submitted within 21 days of receiving notification of the decision (paragraph 20(8)) / (article 29 (9) )
Time limits may be extended in accordance with paragraph 23 / article 32:
(1) Subject to sub-paragraph (2), the time limit within which any act is required or authorised to be done may, for good reason, be extended:
(a) in the case of acts required or authorised to be done under paragraph 21 or 22 / article 30 or 31, by a Costs Judge or the High Court as the case may be; and
(b) in the case of acts required or authorised to be done by a representative under any other paragraph / article, by the appropriate officer.
(2) Where a representative without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the appropriate officer, a Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit and shall consider whether it is reasonable in the circumstances to reduce the costs / fees payable to the representatives under articles 5,6 or 8; provided that the costs shall not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the costs should not be reduced.
(3) A representative may appeal to a Costs Judge against a decision made under this paragraph / article by an appropriate officer and such an appeal shall be instituted within 21 days of the decision being given by giving notice in writing to the Senior Costs Judge specifying the grounds of appeal.
From 2nd January 2007 all claims received by the appropriate NTT region are subject to consistent application of the above criteria with the following relaxing of limits:
Where
-
a claim for costs is less than 3 months out of time (i.e. submitted within 6 months of conclusion)
-
a request for redetermination or written reasons is less than 21 days out of time (i.e. submitted within 42 days of notification)
no penalty will be applied
Where claims or requests for redetermination or reasons are submitted outside the above parameters the determining officer (the appropriate officer) will refuse to determine, redetermine or supply reasons as the case may be unless there is good reason, or exceptional circumstances for delay.
Where there is good reason it is unlikely that any penalty will be imposed.
Where there is no good reason but there are exceptional circumstances it is likely that a financial penalty will be imposed in accordance with the tarriff set out below.
All financial penalties including refusal to determine will be directed to profit costs and not 'other' disbursements.
Practitioners will be given the opportunity to show cause orally or in writing why the costs should not be reduced.
Examples of good reasons may include: Claim difficult and or substantial, burglary, fire, flood leading to loss of records, death, staff turnover excessive.
Examples of exceptional circumstances may include: profit costs substantial and a refusal to tax would be a disproportionate sanction.
The above lists are not exhaustive.
Where exceptional circumstances exist, the tariff to be applied is as follows (The reference to out of time relates to the strict wording of the Funding Order)
- Over 3 months – 6 months out of time – 10% reduction
- Over 6 months – 12 months out of time – 15% reduction
- Over 12 months out of time – 20% reduction
Redeterminations and written reasons are dealt with following the criteria set out in Para 20 but subject to the relaxation in time scales already identified.
Practitioners are advised to engage with the following protocol from 2nd January 2007:
(1) If there is a likelihood that a claim will be submitted outside the parameters identified, application must be made to the relevant NTT region before the appropriate date to extend the time for submission of the claim.
(2) If a claim is submitted 'late' (and the criteria is the relaxed time scale identified above) it must be accompanied by a letter giving;
-
Reasons for the delay which will be considered on its merits and
-
Notification as to whether the applicant wishes to show cause by way of oral representations.
This notice does not affect arrangements with the Crown Court for Standard or Graduated Fees or for claims due to be assessed by the Legal Services Commission.
These arrangements were reviewed six months after commencement date, and as a consequence will remain in place until further notice.
Enquiries on the general principles above may be directed to Paul Winzar
Any enquiries in relation to individual cases must be made to the appropriate NTT Regional Taxing Manager.