1. This protocol applies to those who are to participate in the Robert Hamill Inquiry as witnesses or as interested parties, and who are to be legally assisted at public expense. It does not apply to witnesses who are directly supported by Government Departments. It is subject to any specific terms and conditions placed on such funding in any individual case.
2. All work falling outside the terms of reference will be disallowed. Those terms are:
“to inquire into the death of Robert Hamill with a view to determining whether any wrongful act or omission by all within the Royal Ulster Constabulary facilitated his death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of his death was carried out with due diligence; and to make recommendations.”
3. Payments will be made only for legal work undertaken which is necessary, fair, reasonable, and proportionate in all the circumstances.
4. All work must be conducted in a cost effective and efficient manner with no duplication and making best use of the public funds provided.
The decision in principle on funding legal assistance
5. The Secretary of State announced to Parliament on 8 July 2004 that where witnesses are called to give evidence to the Inquiry the reasonable cost of their legal assistance will be met from the public purse, to enable them to prepare for, and deliver, their evidence.
6. To give effect to that announcement, the cost of legal assistance necessary for the preparation and delivery of evidence will be met from the public purse only where the Inquiry confirms this and the extent of the assistance following upon written application being made to the Inquiry. Such an application must be made by the relevant application form (which appears on the official inquiry website at www.roberthamillinquiry.org). The Inquiry recognises that the degree of assistance which it will be reasonable to fund from the public purse may vary according to the degree of a witnesses’ required participation in the Inquiry.
7. The costs of assistance which will then be met from public funds will be subject to terms to be agreed by the Solicitor to the Inquiry in advance of any work being undertaken and to the general provisions of this protocol.
8. Any persons or bodies wishing to be heard by the Inquiry as an interested party may apply to be heard as such and to apply for funding at public expense. They must do so in writing setting out their reasons on the relevant application form (which will appear on the official Inquiry website noted above). The Chairman will decide whether to permit such an applicant to participate in the Inquiry as an interested party and, if so to what extent and by what means. Insofar as the Chairman agrees to allow such participation he will further decide whether the extent to which the costs of that legal assistance for participation should be met by the public purse.
9. The Solicitor to the Inquiry will inform the applicant of the decision. Public funding for the costs of any assistance will be subject to terms to be agreed by the Solicitor to the Inquiry and the witness in advance of any work being undertaken and also to the general provisions of this protocol.
Scope of work to be publicly funded
Receipt of initial instructions
10. The applicant shall indicate what preparatory work will be required and shall secure agreement with the Inquiry on the scope of that work and its costs in advance of commencing the work.
11. The scope of work which is eligible for public funding in connection with interviewing will be limited to reading materials which are supplied to prospective witnesses for the purpose of taking instructions from the witness, attendance at interviews and arranging for the signing of witness statements prepared by the Inquiry. The extent of work which is funded under any category will depend on what is appropriate and necessary in the circumstances of each witness. The applicant should secure agreement with the Inquiry on the scope of that work and its costs in advance of commencing the work.
Preparation for oral evidence by witnesses and interested parties
12. The scope of work, if any, which is eligible for public funding in connection with preparation for the hearing shall be limited to considering the documents provided to a witness or interested party by the Inquiry, taking such instructions as are reasonable in the light of the expected degree of participation of the witness or interested party, and for providing useful lines of questioning to Inquiry Counsel within the terms of reference. The extent of any funded work within these categories will depend on what is appropriate and necessary in relation to each witness or interested party.
13. Funding will not normally be provided for any investigative work or for instruction of experts.
14. The costs of any preliminary oral or written applications on legal issues will be awarded and assessed summarily on the merits by the Chairman after determination of the application. Schedules of any costs which are sought to be recovered in relation to such an application should be provided to the Solicitor to the Inquiry 24 hours in advance of the hearing of the application. Where such a schedule is not provided in advance, such costs will not normally be recoverable.
15. Unless expressly agreed in advance public funding for attendance at the Inquiry hearing will be given only for those parts of the hearing in which the witness or interested party is giving evidence or is being directly impugned or it is otherwise necessary in the interest of justice for the representative to be present. Fees for time spent at the hearing may be disallowed if the Chairman determines that attendance was unnecessary. Funding for work done during the course of the hearing other than attendance at the hearing will not be available without prior agreement with the Inquiry.
16. Insofar as permission has been obtained from the Chairman for closing submissions to be made the reasonable cost of preparing and delivering such submissions will be met from the public purse to the extent that the submissions and the making of them are appropriate and necessary, and agreed in advance with the Inquiry.
Joint representation and conflicts of interest
17. Wherever possible witnesses are encouraged to instruct Solicitors who are already retained by other witnesses or suspected witnesses to the Inquiry. The purpose of that is to avoid duplication of cost.
18. Where the Inquiry Solicitor has reason to believe that the interests of any witness or interested party may conflict with the interests of any other witness or interested party she shall ensure that such conflict is made known to those involved and any public funding which is made available for legal assistance will be awarded on the basis that separate Solicitors, and if necessary Counsel, are retained.
19. Payment of disbursements over £100 will be made only where prior approval has been obtained for the expenditure from the Solicitor to the Inquiry or her nominee. Payment for disbursements under £100 will be made only where the expenditure is necessary and reasonable and supported by the appropriate vouchers.
Travel and waiting costs
20. Hourly rates for travel and waiting for legal representatives will be at 50% of the agreed rate for legal work. Reimbursement of reasonable travel costs by public transport will be provided on production of the receipt for payment by the representative or witness. A mileage allowance will be given at the (public) standard rate for reasonable journeys necessary to attend an interview or the public hearing.
Publicly funded rates and hours
21. By a revisedNotice of Determination under Section 40(4) of the Inquiries Act 2005, the Secretary of State for Northern Ireland has set certain qualifications and conditions on the award of public funding for the cost of legal representation. The Revised Notice made by the Secretary of State dated 4 February 2008 sets the following limits on any award of public funding by the Inquiry Chairman. By paragraph 2 of that Notice the maximum hourly rates that may be awarded for public funding of Counsel and Solicitors to assisted parties are as follows:
Leading Counsel £200
(whether a member of the Bar or a Solicitor acting in the role of advocate)
Leading Junior Counsel £175
(whether a member of the Bar or a solicitor acting in the role of advocate)
Junior Counsel £100
(whether a member of the Bar or a Solicitor acting in the role of advocate)
22. By paragraph 2(b) of the Notice dated 19 November 2007, the maximum number of hours that can be charged by a legal representative in receipt of an award made by the Chairman shall be 40 hours per week, save that, exceptionally, the Chairman may authorise an increase in the weekly cap to 60 hours for Counsel or a Solicitor during the oral hearings and for a two month period before they commence where he is satisfied that such action is justified in all the circumstances. No unused hour in any week may be set off against any other week and a week should be taken as commencing on Monday and ending on Sunday.
23. Subject to the maximum limits set in any Notice issued under section 40(4) of the Inquiries Act 2005 which is effective at the time that the costs are incurred, the hourly rates at which payment will be made for legal work shall be agreed between the Solicitors for assisted parties and the Solicitor to the Inquiry prior to the commencement of any work sought to be charged to public funds. The hours of work that will be funded from the public purse will be agreed by the Solicitor to the Inquiry with the Solicitor to the assisted party subject to any maximum specified in any such Notice under section 40(4) of the Inquiries Act 2005. In default of an agreement with the Solicitor on the hourly rate or the maximum hours that qualify for public funding, an assisted party may ask the Solicitor to the Inquiry to refer any written representations on such issues to the Inquiry Chairman for his consideration. The decision of the Chairman on the issues shall be final.
24. It will not normally be possible to obtain public funding for costs which were not subject to the agreement of the Solicitor to the Inquiry prior to the costs being incurred including costs which are in excess of the terms upon which agreement with the Inquiry Solicitor has been reached.
Invoices for legal fees to be claimed from public funds should be sent to the Inquiry Secretariat on a monthly basis within 14 days of the end of the month in question. Timesheets should be kept in respect of all work for which public funding is to be claimed and be available for inspection by the Inquiry as required. A detailed invoice should be provided to the Inquiry which contains the description of work done, when it was undertaken, the identity and grade of fee earner and the total of hours spent per capped period.
25. Following the consideration of bills in accordance with the procedure above the Inquiry Solicitor will determine the amount which should be paid and notify the Solicitor of the assisted party accordingly. If the determination is disputed then the Solicitor to the assisted party should raise that dispute with the Inquiry Solicitor in the first instance. If no agreement can be reached either the Inquiry Solicitor or the Solicitor to the assisted party may refer the dispute on costs to the Inquiry Chairman whose decision will be final.
26. The Inquiry Chairman and Solicitor to the Inquiry retain the discretion to vary the application of the terms of this protocol on a case by case basis where it is considered necessary for the proper conduct of the Inquiry subject to the constraints of any notice under section 40(4) of the Inquiries Act 2005 which is effective at the time the costs are incurred.
ROBERT HAMILL INQUIRY
19 November 2007