Principles applying to payment of preparation fees to counsel

Principles applying to payment of preparation fees to counsel

Victoria Legal Aid (VLA) has adopted the following principles for the payment of preparation fees to counsel in criminal trials. ‘Preparation’ includes:

  • inspecting exhibits
  • listening to tape recordings
  • reading
  • consultations.

Additional preparation fees available where necessary

Additional fees for preparation for committals, committal/inquests, coronial inquests, trials and appeals will only be allowed where the preparation is necessary and exceeds eight hours. A preparation fees worksheet must be completed for each request.

When an application is made for additional preparation fees VLA will take into account any non-sitting days for which counsel will be paid a fee, whether through the granting of an appeal costs certificate or from VLA where an appeal costs certificate is not available.

Preparation only available for trial counsel

Preparation fees are available for trial counsel only and are not available for co-counsel/junior counsel.

Daily fees include payment for work associated with court attendance

The daily fee includes remuneration for time that is ordinarily necessary for counsel to spend before and after court each day reading the transcript, preparing arguments and submissions, and conferring with the instructing lawyer and the client, plus remuneration for time spent in court. This work is not subject to payment of additional preparation fees.

Requirements for payment of preparation

Before payment of a fee for preparation will be considered, VLA will require all of the following:

  • an estimate by the instructing lawyer of the amount of time it will take counsel to read and prepare the case – this should occur after the lawyer has consulted with counsel
  • details of the nature and extent of the preparation, including the number of pages and the nature of documents to be perused by counsel
  • details about which part of the preparation will be undertaken by the instructing lawyer.

Preparation must be essential

VLA must satisfy itself that the preparation is essential. If necessary, VLA will independently examine the documentation and require confirmation from counsel by means of further and better particulars about the amount of preparation necessary.

Calculation of preparation

Time for reading and scanning of documentary material will be calculated at the rate of 90 pages per hour to peruse and 180 pages per hour to scan.
Documents to be perused include:

  • witness statements
  • transcripts of committal proceedings
  • transcripts of record of interview
  • transcript of previous trial (appeal/retrial only).

Documents to be scanned are:

  • financial statements
  • photographs
  • other exhibits
  • transcripts of listening devices, SMS messages and other recordings.

Viewing and listening material includes:

  • video/DVD material
  • audio material.

Rates of additional preparation

When the number of pages of material to read or scan exceeds eight hours, counsel is entitled to seek additional preparation. The rate of additional preparation will be calculated as follows:

[perusing + scanning] less 8 hours
rounded to nearest whole number
x
appropriate hourly rate
where perusing = (total pages to be perused) / 90
and scanning = (total pages to be scanned) / 180

Exceptions to this formula:

  • VLA may apply its discretion to reduce additional preparation fees in matters where the additional preparation sought is exceptionally high.
  • Where the scanning fee claimed is more than 10 hours, VLA will reduce the hours in excess of 10 hours by one-third. For example, if the scanning claim is 40 hours VLA will allow 30 hours.

Calculation of additional preparation

A preparation fee will be calculated on the basis of hours spent on preparation, up to the maximum fee approved. The fee paid will not exceed the amount calculated using the formula above. Counsel must keep a record of time spent on preparation and submit it when a fee is claimed.

Further preparation not normally paid after an adjournment

Where a hearing does not proceed and is either adjourned or a rehearing occurs, a further preparation fee will not usually be paid for the adjourned hearing or rehearing.

Where a period of time passes so that it would be unreasonable to expect counsel to have a detailed recollection of the circumstances of the case, then the further preparation fee will be paid. This will be a proportion of the original fee.

Preparation only payable once

A preparation fee will usually be paid only once for the same case, on the basis that the same counsel should appear at all stages of the case. A further fee for preparation will only be paid in the circumstances described above, or where the counsel previously engaged cannot appear at a subsequent hearing, or where there is some other good reason for briefing different counsel.

No payment for preparation where counsel does not attend after adjournment

If the hearing of a matter is delayed or adjourned, and counsel is unable to appear at the later hearing, then counsel will not usually be entitled to a preparation fee unless the preparation undertaken has significantly reduced the amount of preparation which new counsel would need to do.

No preparation will be paid for legal research

Counsel is presumed to know the law. A fee will not ordinarily be paid for researching the law.

Preparation fees and acceptance of a brief

A preparation fee must be agreed on either before, or immediately after delivering the brief to counsel who has assessed the amount of work involved. This must occur before formal acceptance of the brief.

Lawyer as counsel

Where a lawyer appears as counsel preparation fees may be claimed on the same basis as if the lawyer was counsel.

Additional fees uplift

Where additional preparation fees have been approved for counsel at the Magistrates’ Court stage and the matter proceeds to the County Court or Supreme Court the difference between the hourly rate of preparation paid in the Magistrates’ Court and the higher court will be allowed.

See Table ZZ for the applicable hourly rates.