Khan v Lord Chancellor

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice MITCHELL
Judgment Date17 January 2003
Neutral Citation[2003] EWHC 12 (QB)
Docket NumberCase No: HQ10X03692 & HQ01X04928

[2003] EWHC 12 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Mitchell

Case No: HQ10X03692 & HQ01X04928

Between:
Fauz Mohammed Khan
Appellant
and
The Lord Chancellor
Respondent

Mr. P. Birts QC (instructed by Bhailok Fielding) for the Appellant.

Mr. N. Hillard (instructed by Treasury Solicitor) for the Respondent

1

Hearing dates : 5 December 2002

2

Approved Judgment

3

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

4

Mitchell.J

Mr Justice MITCHELL
5

Fauz Mohammed Khan is a practising barrister of some considerable experience. He is Head of his Chambers. In September 1998 he was charged with indecently assaulting the girlfriend of one of his clients. The occasion of the alleged assault was a conference at his chambers. Thereafter he was convicted of the offence by a Stipendary Magistrate (7.5.99). His appeal against conviction to the Crown Court failed (20.1.00). He then endeavoured to have the decision of the Crown Court overturned. Initially he applied unsuccessfully to the Crown Court for a case to be stated. Thereafter he successfully applied for permission to apply for Judicial Review and in November 2000 the decision of the Crown Court to reject his appeal against conviction was quashed and the case was remitted to the Crown Court for rehearing. That rehearing commenced on or about March 9 2001 before Thomas J and two magistrates. After three days of prosecution evidence the Court ruled, following a submission, that there was 'no case' for Mr Khan to answer.

On two occasions Mr Khan was awarded his costs pursuant to the provisions of section 16(6) of the Prosecution of Offices Act 1985. The two occasions were first: following the quashing of his conviction by the Divisional Court and second following the successful submission of 'no case' in the Crown Court. The award of costs on the first occasion is the only award which is relevant to the issue I have to decide. On November 9 2000 the Divisional Court awarded costs in respect of (i) the hearing before that Court and (ii) the unsuccessful appeal hearing in the Crown Court.

6

Based on the award of costs on November 9 2000 by the Divisional Court, two claims were submitted for consideration by the Supreme Court Costs Judges. Each claim was initially determined by Judge Rogers and Mr Khan appealed to the Senior Costs Judge (Judge Hurst) against each of Judge Rogers' two determinations. Claim HQ10X03692 (SCCO Ref 130/2001) was considered (on appeal) by Judge Hurst in his 'reasons' letter dated 16 May 2001. Claim HQ01X04928 (SCCO Ref 337/2001) was considered (on appeal) by Judge Hurst in his 'reasons' letter dated 9 November 2001. Claim one related to the preparation for and hearing in the Crown Court on the occasion of the unsuccessful appeal and Claim two related to the preparatory work in connection with the application for Judicial Review and earlier work relating to the unsuccessful application to the Crown Court to state a case and to an application for bail to the High Court.

7

Before considering either claim it is convenient to set out the relevant statutory provisions:

8

Section 16(6) of the 1985 Act provides:

9

"A defendant's costs order shall, subject to the following provisions of this section, be for payment out of central funds, to the person in whose favour the order is made, of such amount as the Court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings."

10

Section 16(9):

11

"Subject to subsection (7) above, the amount to be paid out of central funds in pursuance of a defendant's costs order shall –

(a) be specified in the order in any case where the Court considers it appropriate for the amount to be so specified and the person in whose favour the order is made agrees the amount; and

(b) in any other case, be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section.

12

Section 21(4) of the 1985 Act provides:

13

"For the purposes of Sections 16 and 17 of this Act, the costs of any party to proceedings shall be taken to include the expense of compensating any witness for the expenses, trouble or loss of time properly incurred in or incidental to his attendance."

14

Costs in Criminal Cases (General) Regulations 1986 (made pursuant to Section 20 of the 1985 Act) – Regulation 7:

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"Determination of costs

16

7.-(1) The appropriate authority shall consider the claim, any further particulars, information or documents submitted by the applicant under regulation 6 and shall allow such costs in respect of –

(a) such work as appears to it to have been actually and reasonably done; and

(b) such disbursements as appear to it to have been actually and reasonably incurred,

17

as it considers reasonably sufficient to compensate the applicant for any expenses properly incurred by him in the proceedings.

18

(2) In determining costs under paragraph (1) the appropriate authority shall take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.

19

(3) When determining costs for the purpose of this regulation, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the appropriate authority may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved against the applicant.

20

CLAIM HX10X03692 (issue date 31.8.01) SCCO Ref: 130/2001

21

The bill of costs was considered by a Costs Judge (Judge P R Rogers). He made a determination and following further representations there was a redetermination. The judge was then invited to give reasons for his final decision. This he did in a letter to Mr Khan's solicitors (Messrs Bukhari and Co) dated April 3 2001. The basis upon which Judge Rogers proceeded appears very clearly from paragraphs 11, 12 and 13 of his letter:

22

11. The bill from the solicitors Bukhari & Co was for a total of £66,208.63, and a large proportion of that was comprised of disbursements, or fees incurred by Mr Khan in attending court on various occasions. These latter fees were disallowed on the basis that a flat fee of £750 for each day the defendant attended court or a conference could not be justified. In addition Mr Khan sought a brief fee for the hearing at the Crown Court, where in fact he was led by [Queens Counsel]. Following representations prior to redetermination I allowed [Queens Counsel's] brief fee at £18,000, together with the £70 for travelling expenses which I reinstated, and I have not been asked for reasons in respect of that item. The brief fee claimed had been £20,000, allowed by me at determination at £15,000.

23

12. I deleted from the allowances made to Mr Khan the claimed brief fee in the Crown Court of £7,500. It is in respect of that item that I am now asked to write reasons.

24

13. I consider that Mr Khan is not entitled to a brief fee on the proper interpretation of paragraph 501(d) of the Code of Conduct of the Bar in England and Wales. ……..

25

Having regard to the language in which Mr Khan's claim was couched (as reflected in the above letter), it is not surprising that Judge Rogers took as his starting point paragraph 501(d) of the Code of Conduct of the Bar in England and Wales. The sixth edition of the Code took effect on October 1 1998. The 7th edition of the Code took effect on July 31 2000. Paragraph 603(d) of the 7 th edition is precisely to the same effect as paragraph 501(d), (the paragraph referred to by Judge Rogers) of the 1998 edition viz –

26

"A Barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed.

27

(d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced."

28

Further, paragraph 701(d) of the 7 th edition provides:

29

"701(d) A barrister must have regard to any relevant written standards for the conduct of professional work issued by the Bar Council."

30

These "written standards", published by the Bar Council with the Code, include under the heading 'General Standards':

31

"3. Acceptance of work

3.6 A barrister must not accept any brief or instruction if the matter is one in which he has reason to believe that he is likely to be a witness ……

32

3.7 A barrister should not appear as a barrister:

(a) in any matter in which he is a party or has, a significant pecuniary interest …….."

33

Judge Rogers decided that the two authorities ( R v Boswell [1987] 1 WLR 705 and R v Stafford Stone and Eccleshall JJ ex p Robinson [1988] 1 WLR 369) relied upon by Mr Khan in support of his claim did not assist him. His 'reasons' letter concludes:

34

"19. In my judgment that case [i.e. ex p Robinson] simply reinforces the line of authority that started with the case of London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872, to the effect that solicitor litigants in person are in a different position from other litigants in person. It does not in my judgment assist Mr Khan, because I do not believe that it applies to barristers, nor is it appropriate that I, at this judicial level, should seek to extend it in that way.

35

20. It is for the above reasons that I felt unable to accede to Mr Khan's claim to be allowed a brief fee for representing himself at...

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