Current Key Documents

Protocol concerning Public Funding for Legal Representation, 30th June 2006

1.  The granting of representation in this Inquiry is dealt with in the Inquiry’s Procedures Document .  This Protocol deals with the related matter of public funding of legal representation.

The Inquiry has no power to grant funding for the legal representation of any participant in the Inquiry.  That is a matter for the Secretary of State for Northern Ireland.  However, the Inquiry will consider making a recommendation to the Secretary of State that the cost of legal representation be met from public funds, where the normal criteria for such funding are met.  These criteria evolve from a statement of the Attorney General made on 29 January 1990, in answer to a parliamentary question, when it was said:

  “So far as the costs of legal representation of parties to any inquiry are concerned, where the Government have a discretion they always take careful account of the recommendation on costs of the tribunal or inquiry concerned.  In general, the Government accept the need to pay out of public funds the reasonable costs of any necessary party to the inquiry who would be prejudiced in seeking representation were he in any doubt about funds becoming available.  The Government do not accept that the costs of substantial bodies should be met from public funds unless there are special circumstances.”

This Protocol sets out the procedures which the Inquiry will adopt in relation to requests for public funding for legal representation from a Full Participant or such other participant as the Inquiry requires to assist it in its work.  Such other participant is hereafter referred to as a “Witness”. 

Section 1: The Scope for Legal Representation in the Inquiry

2. The Inquiry’s process is inquisitorial, not adversarial. Accordingly, in the case of legal representatives of a Full Participant, their role is likely to involve some or all of the following:

* Receipt of initial instructions.

* Being present with and advising the Full Participant or an individual represented by the Full Participant when he/she is being questioned by a solicitor on behalf of the Inquiry in the preparation of a witness statement by that solicitor, and subsequently advising upon the witness statement so prepared for signature.

* Consideration of the material contained in the Inquiry Bundle in so far as is necessary properly to represent the Full Participant’s interests.

And, subject to procedural rules to be published in due course governing the conduct of the Full Hearings:

* Making a time-limited opening statement.

* Representing the Full Participant or an individual represented by the Full Participant during the Full Hearings and submitting proposed questions or lines of questioning to Counsel to the Inquiry

* Making written final submissions and/or time-limited final oral submissions.

3. In the case of the legal representatives of a Witness,  their role is likely to involve some or all of the following:

* Receipt of initial instructions.

* Being present with and advising the Witness when the Witness is being questioned by a solicitor on behalf of the Inquiry in the preparation of a witness statement by that solicitor, and subsequently advising the Witness upon the witness statement so prepared for signature.

* If the Witness is requested by the Inquiry to give oral evidence, consideration of such Inquiry documents as the Witness may need to see for such purpose.

* Representation of the Witness during their evidence, and possibly also during the evidence of another witness whose evidence is at odds with their own.

* Dealing with requests to the Witness from the Inquiry for further information or explanation.

Section 2: General Principles governing requests for funding

4. The principles which the Inquiry will apply when considering an application for a recommendation that the costs of legal representation be paid from the public purse are as follows:

(i)     This is an inquisitorial inquiry where the scope for involvement for legal representatives will be broadly as detailed in paragraphs 2 and 3 above. Applications will be considered on this basis.

(ii)    Recommendations are envisaged in cases where the Inquiry decides that representation is necessary and it is satisfied that the applicant cannot reasonably be expected to pay for such representation. However, the Inquiry does not envisage making a recommendation in respect of public bodies, trades unions or other institutions with substantial resources unless there are special circumstances which justify a call on public funds.

(iii)    All legal representatives will be expected to work in a cost-effective and economic manner, avoiding unnecessary duplication and work not reasonably necessary to the representation of the applicant.

(iv)    Funding will be authorised at a level of seniority of lawyers determined by the Inquiry as appropriate having regard to the relevant circumstances.

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Section 3: Applications for a recommendation for public funding

5. Any Full Participant or Witness who wishes to make such an application must do so by writing to the Inquiry Solicitor. Such application should specify the following:

* The reason(s) why legal representation is considered necessary and why the applicant cannot reasonably be expected to pay for such representation.

* The level of seniority of the solicitor who will deal with the case and his/her proposed hourly charging rate.

* Where it is thought necessary to instruct counsel, the reasons for so doing, counsel’s date of call and proposed hourly rate (note that the employment of counsel will be funded only on the basis of payment for time spent).

* The number of hours for which it is anticipated the solicitor will be engaged on Inquiry work.

* The number of hours for which it is anticipated counsel will be engaged on Inquiry work.

* Particulars of any other foreseeable expenses.

6. Once the application has been considered, the applicant will be notified as to whether a recommendation for funding has been made by the Inquiry and the terms of any such recommendation. The applicant will then be notified whether or not the recommendation has been accepted by the Secretary of State and, if it has, the terms on which public funding has been approved.

7. The legal representatives of the successful applicant will agree in advance, with the Solicitor to the Inquiry, the size and composition of the legal team to be engaged, including the seniority and number of counsel where that is agreed to be necessary.

8. The legal representatives of the successful applicant will agree in advance, with the Solicitor to the Inquiry, hourly rates for counsel, solicitors and paralegals.

9. Capping of legal fees will be applied whereby legal teams (including counsel) will be capped as to the maximum number of hours that can be charged for any working day, even though the number of hours actually worked may exceed that maximum.

10. The extent and nature of the work to be publicly funded will be agreed in advance with the Solicitor to the Inquiry.  Normally legal representatives will not be paid for investigative work since that is for the Inquiry.  Similarly, payment will not be made for the obtaining of such items as expert reports since these are matters for the Inquiry.

11. Expenditure before notification of the Secretary of State’s approval or in excess of the terms upon which approval is granted will not normally be recoverable.

12. It will be open to the Inquiry to make further recommendations to the Secretary of State at any stage. In particular, it 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 cost of legal representation. This may amount to an overall financial limit and/or a limit on the number of hours to be spent on Inquiry business.

13. All public funding is subject to a condition that the successful applicant agrees to be bound by the decision of the Senior Costs Judge of the Supreme Court Costs Office of England and Wales if the Inquiry Solicitor or the Treasury Solicitor’s Costs Branch or a legal representative chooses to refer any specific matter to him in accordance with section 5 below.

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Section 4: Billing Procedures

14. Once an application for funding has been approved by the Secretary of State, the legal representatives of the Full Participant or Witness concerned will be required to submit bills on a monthly basis to the Inquiry Solicitor. Those bills, which must be submitted no later than 14 days after the month end, must contain at least the following:

(i)     A breakdown of the number of hours worked by each person on each day, specifying, in each case, details of the work undertaken and the time spent on it.

(ii)    The level of seniority and the hourly rates charged for each person. These hourly rates will be those specified by the Secretary of State in his acceptance of the recommendation or as otherwise agreed with the Inquiry Solicitor in advance.

(iii)    A list of all disbursements claimed. The prior written approval of the Inquiry Solicitor must be obtained in respect of any disbursement in excess of 100. Disbursements in respect of which such approval has not been obtained will not be reimbursed.  For disbursements under 100 these will be reimbursed only where the expenditure was necessary and reasonable and where evidence of payment is submitted.

(iv)    Where work has been undertaken by counsel, details of the fees, in each case supported by written particulars which must specify precisely for each day the work done and how much time was spent on it.

Section 5: Scrutiny of Costs

15. The Inquiry Solicitor will scrutinise claims for costs.  Following initial consideration by the Inquiry Solicitor, the bills of costs may be scrutinised by the Treasury Solicitor’s Costs Branch. The principles set out in paragraphs 2 and 3 above will apply equally to the scrutiny of costs. Work which is contrary to those principles and work on matters outside the Inquiry's Terms of Reference and its List of Issues will be disallowed.

16. Save in exceptional circumstances costs will be scrutinised in accordance with the standard basis as follows:

* Costs will be allowed which are fair and reasonable and proportionate to the matter in issue.

* Any doubt as to whether costs have been reasonably incurred or are reasonable and proportionate in amount will be resolved in favour of the paying party.

* Where agreement cannot be reached between the Inquiry Solicitor or the Treasury Solicitor’s Costs Branch and a representative of a Full Participant or Witness on any items appearing in a bill of costs, the Senior Costs Judge will normally be requested to arrange for an assessment to determine the matter, the Full Participant or Witness or their legal representative having first agreed that, as a condition of the grant of public funding, they will be bound by the decision of the Costs Judge (as to which see paragraph 13 above).

17. The Inquiry Solicitor will honour and approve for payment any assessment of costs by the Senior Costs Judge under paragraph 16 above.

18. Failure to follow the procedures set out in this Protocol could result in payment being delayed or refused.

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