The following notice was issued on 20 April 2020. Since that date there has been no appreciable increase in attach barrister requests. Now that consultation on the proposed Interim Payment Scheme has concluded and the Agency is preparing for the introduction of the Scheme, practitioners should ensure that all actions are being taken to attach barristers to avoid applications for interim payment being refused. Please read this note and ensure that you follow the guidance.
Proposed COVID – 19 Interim Payment Scheme - Requirement to Attach Barristers
This should be read in conjunction with the Department of Justice Consultation Paper on the Proposed COVID-19 Interim Payment Scheme for Legal Aid Suppliers which can be found on the ‘Consultations’ page of the Departmental website.
A qualifying condition for a solicitor to apply under the Proposed COVID-19 Interim Payment Scheme is that in any case in which a barrister has been certified, the barrister has been added to a case[i]. Failure to comply with this requirement will mean that an application under the Proposed COVID-19 Interim Payment Scheme will be refused[ii].
In ALL criminal cases which have been certified for counsel, irrespective of the date criminal legal aid was granted, solicitors can and should attach the barrister(s) instructed in that case before applying for an interim payment.
If, when trying to attach the barrister, you get the warning message which follows you should check the type of certificate in the “case overview” screen.
If it displays “solicitor only” you will need to contact the court office and ask them to amend the ICOS record. Once they have confirmed that the record has been updated you should wait a few days, check the LAMS case has been updated and then attach the barrister.
Barristers instructed in criminal cases should immediately provide their Supplier Reference Number to their instructing solicitor and request that they are attached to the case before the Interim Payment Scheme commences to avoid any delay.
In any civil case where an authority for counsel was granted AFTER 14 June 2019 solicitors can and should attach any barrister instructed in that case before applying for an interim payment.
Barristers instructed in all civil cases where an authority for counsel was granted after 14 June 2019 should provide their Supplier Reference Number to their instructing solicitor and request that they are attached to the case before the Interim Payment Scheme commences to avoid any delay.
In any civil case where an authority for counsel was granted ON or BEFORE 14 June 2019, solicitors CANNOT attach a barrister therefore they must complete and submit a request to email@example.com to have a barrister attached.
Solicitors should use the appropriate form from the ‘LAMS - Attach barrister request template forms’ page located on the Agency’s website. This form was originally designed for barristers to provide solicitors with a list of cases they are instructed in, for onward transmission by the solicitor to the Agency, to have the barrister attached. However, if barristers provide their instructing solicitors with their Supplier Reference Number, solicitors can use this form to request the Agency to attach a barrister in specific cases, in advance of submitting an application for payment under the Interim Payment Scheme. However, full details of the case must be provided by the solicitor when requesting the attachment of a barrister.
The Agency will maintain its existing “backstop” attach barrister arrangements, as detailed in LSA Circular 11/19. In respect of new cases in which a barrister has not been attached by their instructing solicitor they should follow the guidance set out at paragraphs 14 and 15 of the Circular. However, the Agency’s priority will be on processing attach barrister requests in support of the Interim Payment Scheme as this is more time critical.
Barristers MUST NOT use the Backstop facility to seek to be attached to a case for the purpose of submitting an application under the Interim Payment Scheme as this will constitute duplication of effort for their instructing solicitor and the Agency.
If a case is about to conclude and a barrister has not been attached they can use the “backstop” if their instructing solicitor has not attached them despite requests to do so. However, in these circumstances the barrister should indicate that no interim payment is being sought, the request is to facilitate billing as the case is about to conclude.
In cases involving taxation we would not expect the backstop to be used as barristers should be attached when the solicitor uploads the taxation certificate for payment.
The Agency will keep these arrangements under review to ensure that the attach barrister arrangements are working effectively.
[i] Paragraph 2.5(I) of the Consultation Paper and Paragraph 11 of Annex B to the Consultation Paper
[ii] Paragraphs 14 and 18 of Annex B to the Consultation Paper