Lord Chancellor v Edward Hayes LLP and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Nicola Davies DBE,Mrs Justice Nicola Davies |
| Judgment Date | 01 February 2017 |
| Neutral Citation | [2017] EWHC 138 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2016/0232 |
| Date | 01 February 2017 |
[2017] EWHC 138 (QB)
The Hon. Mrs Justice Nicola Davies DBE
Master Whalan (Sitting as an Assessor)
Case No: QB/2016/0232
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Bedenham (instructed by Government Legal Department) for the Appellant
Anthony Montgomery (instructed by Edward Hayes LLP) for the Respondents
Hearing date: 25 January 2017
Approved Judgment
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.
The appellant brings this appeal pursuant to Regulation 30(5) of the Criminal Legal Aid (Remuneration) Regulations 2013 ("the 2013 Regulations") against a decision of Costs Judge Rowley dated 25 April 2016. The first and second respondents were instructed in the case of R v Khandaker as solicitor and counsel respectively. The second respondent did not represent the defendant at trial but, as counsel initially instructed, was the person to whom the legal aid fees were paid pursuant to the 2013 Regulations.
The defendant was charged with conspiracy to assist unlawful immigration and offences of fraud. The prosecution Case Summary states that the defendant, Mr Khandaker, conspired with others:
"2. …(in particular those as identified by the 68 persons in the telephone text schedules) to arrange for hard copy/false/forged/counterfeit documents to be custom made for individuals, such documents purporting to evidence past, current or proposed attendance and/or performance at UK educational institutions, and doing so to illicitly assist such individuals to obtain or prolong their leave to remain in the UK on the basis of purported past, ongoing or future education.
3. The enormous scale of the operation organised by Mr Khandaker can be gleaned from:
a. The wealth of communications found on a mobile phone attributed to Mr Khandaker, such communication being with agents for such individuals or indeed with those individuals themselves (the incriminating text messages say the Crown relating to some 68 agents or individuals)."
At the conclusion of the criminal trial the respondents submitted their claims for graduated fees on the basis that the number of pages of prosecution evidence ("PPE") included the pages served on a disc by the prosecution which consisted of downloads from the mobile phone of the defendant which had been seized by the police. The claim of each respondent was determined by a different Determining Officer of the Legal Aid Agency ("LAA"), each calculated the graduated fees on the basis that the 4,325 pages served on disc should not be included. The respondents requested redetermination but the Determining Officers concluded that the 4,325 pages were not PPE being, unused material. Pursuant to Regulation 29 of the 2013 Regulations the respondents appealed the redetermination decision which was heard by Costs Judge Rowley. By his decision dated 25 April 2016, the Costs Judge allowed the appeals. The relevant paragraphs of the judge's Reasons for Decision are set out as follows:
"6. In relation to counsel's appeal, a point is taken as to the fact that the disc was provided directly by the prosecution counsel to the defendant counsel without going via the CPS. It does not seem to me that this is a point which should be taken by the determining officer. The provision of the information by the Crown's advocate seems to me to be just as properly served as if it had been served by the Crown's lawyers. Whilst such an approach may not be ideal administratively, where, as here, there was time pressure on the disclosure the Crown's advocate took a sensible and pragmatic step. There is certainly no reason for the defence advocate to be penalised for that approach.
7. Neither determining officer considered the well-known decision of Haddon-Cave J in R v Furniss to be persuasive in this case. One determining officer has, rather boldly, simply stated that 'Furniss is not considered'. The other determining officer has, in a more measured fashion, referred to the fact that every claim must be assessed on its own particular facts. Telephone, text and cell site material may be relevant to one case, or defendant within that case, and not to another defendant or case as a whole.
8. In the case of Furniss, Haddon-Cave J was clear in stating that the information served on disc needed to be considered just as carefully by the defence lawyers as it had been by the prosecution lawyers before its disclosure. He concluded, at paragraph 56 in these terms:
'The position in law is clear: telephone, text and cell site evidence served by the Prosecution in digital form must now be included in the PPE page count and paid as such.'
9. It has been said that this description of the manner in which PPE from electronic evidence should be dealt with, is a step further than had previously been set out in various costs judge decisions. In those decisions, the importance of the particular documents had been held to be a factor of some weight when considering whether the electronic evidence should be considered as part of the served PPE rather than, for example, essentially unused material."
10. Both the solicitors and counsel refer to a comment of the trial judge in this case, HHJ Shanks, where he apparently said that the material extracted from the telephone was 'central to the prosecution case'. Mr French and Mr House, who appeared before me on behalf of the solicitors and counsel respectively, pressed home this point regarding the importance of the information taken from the telephone in order to make the prosecution's case.
11. It seems to me that this is a case where the electronic evidence is clearly central to the matters in issue and easily satisfies the importance test put forward in other cost judge's decisions. As such, there is no need for me to consider whether the decision in Furniss needs to be applied since the test applied in cases such as R v Jalibaghodelehzi [2014] 4 Costs LR 781 are satisfied in any event.
12. The Agency's main argument for disallowing the electronic evidence is that the relevant information has been extracted and therefore the remainder does not need to be considered or paid for. Realistically, there is no way that the prosecution can always be clear as to which information is or is not relevant to the defendant's case and so it is not simply a question of the prosecution making sure that all relevant documents are provided. Lines of argument to be run by the defendant cannot always be foreseen by the prosecution. Consequently where the evidence is important, the defendant must be entitled to look at the underlying evidence that surrounds it and not simply what the prosecution considers needs to be extracted to prove its case. Such information needs to be scrutinised by the defendant's legal team and it is entitled to be remunerated for so doing."
Grounds of Appeal
Ground 1
The learned Costs Judge erred in not applying the definition of "pages of prosecution evidence" contained in paragraph 1 of Schedule 1 and paragraph 1 of Schedule 2 to the 2013 Regulations. Had the learned Costs Judge applied the statutory definition he would have concluded that the 4,325 pages of downloaded data on the disc was not PPE because:
i) It did not form part of the committal or served prosecution documents and nor was it included in any Notice of Additional Evidence ("NAE") and was provided to the defence as "unused" material.
ii) In any event, it had never existed in paper form and neither the nature of the document or any other relevant circumstance made it appropriate to include it as PPE.
Ground 2
To the extent that the learned Costs Judge sought to exercise some sort of discretionary power to deem as PPE material that does not fall within the statutory definition, he was in error because no such discretionary power exists.
Statutory Provisions
Criminal Legal Aid (Remuneration) Regulations 2013
Paragraph 1 of Schedule 1 to the 2013 Regulations provides in relevant part:
"(2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).
(3) The number of pages of prosecution evidence includes all—
(a) witness statements;
(b) documentary and pictorial exhibits;
(c) records of interviews with the assisted person; and
(d) records of interviews with other defendants,
which form part of the committal or served prosecution documents or which are included in any notice of additional evidence.
(4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.
(5) A documentary or pictorial exhibit which—
(a) has been served by the prosecution in electronic form; and
(b) has never existed in paper form,
is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances."
Paragraph 1 of Schedule 2 to the 2013 Regulations contains the same definition of "pages of prosecution evidence".
Background of the Criminal Case
The Crown's case at trial was that Mr Khandaker had an industrial operation to provide false and counterfeit educational documents, linked to some 500 or so applicants or beneficiaries and their applications for leave to remain in the UK. He had the potential (based on several thousand blank hardcopy completed educational documents) to provide counterfeit documentation...
To continue reading
Request your trial
-
The Secretary of State for Justice the Lord Chancellor v Svs Solicitors
...grounds of appeal are very similar to the grounds advanced unsuccessfully by the Lord Chancellor in the recent case of Lord Chancellor v Edward Hayes LLP and Nick Wrack [2017] EWHC 138 (QB), a decision of Nicola Davies J on which SVS rely in this appeal. The application to adduce fresh evid......
-
R v Claudia Winkler
...counts towards the PPE. I have considered the judgement of Nicola Davies J (as she then was) in Lord Chancellor v Edward Hayes LLP [2017] EWHC 138 (QB) (including in particular para. 20) and the judgement of Holroyde J in SVS (including in particular para. 44 to 48) which, although princip......
-
R v Bowman and D'Arcy; an Appeal against Redetermination v The Lord Chancellor
...counts towards the PPE. I have considered the judgement of Nicola Davies J (as she then was) in Lord Chancellor v Edward Hayes LLP [2017] EWHC 138 (QB) (including in particular para. 20) and the judgement of Holroyde J in SVS (including in particular para. 44 to 48) which, although princip......
-
Mackrell Marsh & Company Solicitors v The Lord Chancellor
...1(5) a qualitative assessment of the material is required, having regard to the guidance in Lord Chancellor v Edward Hayes LLP [2017] EWHC 138 (QB) and SVS (including in particular para. 44 to 48), and the Crown Court Fee Guidance (updated in March 2017) and I have considered them in this ......