Lawyers in Northern Ireland have been accused by Stormont’s powerful justice committee of over-claiming for payment from publicly funded legal aid in more than 80% of the most expensive criminal cases.
For six years solicitors and barristers working on complicated crown court cases — categorised as Very High Cost Cases (VHCCs) — lodged bills for almost £22m more than was considered to be appropriate.
The Legal Services Commission — the body responsible for the payment of legal aid — said that between 2005 and 2011, after considering claims for payment from legal practitioners in VHCCs, reductions were ordered in 81% of cases.
Members of the justice committee, including DUP MLA Paul Givan, have said that the “overcharging” could be portrayed as attempted fraud. However, others have said it was just “some people in the legal profession chancing their arm”.
The Bar Council defended claims for payment made by senior and junior barristers — who were more likely than solicitors to have their claims deducted — and said to suggest there was any “impropriety” was “unfair and demonstrates a misunderstanding of the process”.
VHCCs, which were defined as those cases where the trial was likely to last for longer than 25 days and entitled lawyers to a higher level of pay, were scrapped last year by justice minister David Ford (right) because they were too costly.
They were introduced in 2005 and, up to their abolition last year, they accounted for almost a quarter of the criminal legal aid budget. A loophole in the system meant that there were no powers to remove VHCC classification or reduce the fees payable if a case did not go to trial or last more than 25 days. A report by the Audit Office last year estimated that £25m may have been paid out since 2005 in respect of cases that failed to go to trial or last more than 25 days. From 2005, 359 cases were categorised as VHCCs. During that time almost 850 claims for payment, totalling over £67m, were made by lawyers in VHCCs.
The Legal Services Commission said that deductions applied in 687 of those cases, bringing the amount actually paid to £45m. As some of the claims are still in the system it is estimated the cost will rise by another £17m.
Almost 40% of the deductions applied to senior barristers, 38% to junior barristers and 11% to solicitors.
In some cases where lawyers received interim payments they had to return £1.5m of legal aid after their estimated bills were deemed to be too high by the taxing master who assessed the claims.
The Legal Services Commission has said that another £1.5m is expected to be recouped this year from legal practitioners who had received inflated interim payments.
The Bar Council said that the “historical system for the assessment of fees in Very High Cost Cases was complex”.
A spokeswoman added: “In many instances, there would have been differing opinions as to the value of the payments. To jump to the conclusion that the statistics suggest any impropriety is unfair and demonstrates a misunderstanding of the process.
“Recognising the difficulties with the assessment process, the lack of clarity on rates of payment and the delay in receiving payment, the Bar Council proposed the present scheme with fixed fees to ensure certainty, consistency and transparency for both government and practitioners.”
A spokesman for the Law Society said the society had recommended that the system be abolished as they were not happy with the old system.
The Justice Minister scrapped VHCCs last year as part of a major review of legal aid.
Now lawyers receive a basic trial fee and a refresher fee. Under the new rules, depending on length of trial, senior barristers can earn up to £73,000 to defend a suspect on trial for a serious offence such as murder.
Solicitors can earn up to £13,000.
By Deborah McAleese
Barristers and solicitors whose bills were reduced because they were deemed to be too high were accused of attempting to defraud the legal aid system during a meeting of Stormont’s Justice Committee.
The taxing master, who assesses claims for legal aid payment, deducted fees in more than 80% of the most serious criminal cases.
During a recent meeting of the justice committee to discuss criminal legal aid, committee member Jim Wells said that several employees in the private sector who have over-claimed more than £100 have been “sacked on the spot for doing so”.
“There is a view that it was only £100 here and £100 there and that someone overestimating — that is a very nice way of saying exaggerating or falsifying — their claim to the tune of £100 does not constitute fraud.
“It is fraud and it should have been treated as such. However, under LSC (Legal Services Commission) guidelines, the taxing master will just kindly say ‘that it is a bit much’ and deduct it from the bill. That should not be happening. It should be regarded as quite a serious incident,” the DUP MLA added.
Committee chairman Paul Givan said there was a “culture within the legal profession of making outrageous claims”.
Mr Givan added that “in any other person’s opinion that is attempted fraud.”
The DUP man told the committee he had met with police about a probe into a legal firm suspected of making fraudulent claims.
Mr Givan said that police told him that in one case someone in the legal profession made a claim and was awarded £100,000 less than what had actually been claimed and that the lawyer did not attempt to appeal.
“To my mind that is an attempt at fraud ... It strikes me that in any other world of business, if I provided a service, submitted a bill for it and did not get what I claimed for — certainly to the tune of well over £100,000 — I would challenge it.
“The fact that people were not even appealing such decisions — or, when they appealed and the Legal Services Commission intervened to ask for evidence, they walked away — strikes me as a systematic problem and a culture within the legal profession of making outrageous claims. That, in any other person's opinion, is attempted fraud,” he added.
However, DUP justice committee member Peter Weir (left) said there was a “degree of misunderstanding in the system that sees some of the overcharging as fraud.”
“That is not the nature of the beast. In the past it has maybe been a question of some people in the legal profession chancing their arm. It is almost the equivalent of someone trying to sell a house at an inflated price if someone is mug enough to accept that price,” Mr Weir added.