Mackrell Marsh & Company Solicitors v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Brown |
| Judgment Date | 08 December 2022 |
| Neutral Citation | [2022] EWHC 3355 (SCCO) |
| Docket Number | Case No: T20197407 |
| Court | Court of Criminal Appeal |
In the Matter of:
[2022] EWHC 3355 (SCCO)
COSTS JUDGE Brown
Case No: T20197407
SCCO Reference: SC-2022-CRI-000067
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013/Regulation 10 of the Costs in Criminal Cases (General) Regulations 1986
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
The appeal has been unsuccessful for the reasons set out below.
REASONS FOR DECISION
The issue arising in this appeal is as to the correct assessment of the number of pages of prosecution evidence when determining the fees due under the Criminal Legal Aid (Remuneration) Regulations 2013. As is well known and explained in more detail in the decision of Holroyde J (as he then was) in Lord Chancellor v SVS Solicitors [2017] EWHC 1045, the scheme provides for legal representatives to be remunerated by reference to a formula which takes into account, amongst other things, the number of served pages of prosecution evidence as defined in the 2013 Regulations, the PPE (subject to a cap of 10,000 pages), and the length of the trial. The dispute in this case concerns the extent to which evidence served in electronic form should count toward the PPE.
At the hearing on 2 December 2022 the Appellant was represented by Mr. Mackrell, solicitor for the Appellant, and the Legal Aid Agency (‘the LAA’) were represented by Mr. Orde, an employed barrister.
The Appellant acted under a Representation Order dated 15 October 2019.
The Defendant was charged on a 15-count indictment with various firearms offences (including in particular the possession of disguised Tasers) and drugs offences including possession with the intent to supply various classes and types of controlled drug. As I understand it an issue arose as to whether the Defendant intended to supply drugs. In the Determining Officer's written reasons it is said that the Defendant was found guilty following trial on 21 and 22 March 2022 (it appears that the Appellants were in the event entitled to a ‘trial fee’ there also appears to have an issue to whether a ‘cracked fee’ was payable — which suggests to me that the Defendant did at some late stage plead guilty – albeit, as I understand it nothing turns on this in this appeal).
As part of the investigation into this allegation two mobile telephones were seized. Their contents were downloaded into two ‘handset’ reports in PDF format.
The Determining Officer considered the reports had been served and allowed 3,529 pages of PPE consisting of 435 pages of paper evidence and the balance (3,094) being electronic evidence (‘ePPE’). This included a substantial amount of communication data (call logs, contacts, social groups, SMS messages, MMS messages & chats). She allowed “5% on a broad brush” basis of the images in the Images section; this equates to 307 pages. The Appellant's sole ground of appeal relates to the Determining Officer's refusal to allow the Images Sections in full, or in a greater amount, as PPE. The Appellant's claim is for 6,164 pages in respect of these sections. The sums at stake are substantial: if entitled to the extra pages, the full amount would be £89,975.11 against a fee as it currently stands, of £37,523.38 (with the option of also claiming a Special Preparation fee).
Paragraphs 1(2) to 1(5) of Schedule 2 of the 2013 Regulations provide as follows:
(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 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.”
As Holroyde J makes clear in SVS, material which is, as he put it, only disclosed as unused material cannot be PPE. However, it is clear from the judgment that ‘service’ for the purposes of the regulations may be informal. ‘Serve’ means served as part of the evidence and exhibits in the case and evidence may be served even though the prosecution does not specifically rely on every part of it.
It is clear however from the terms of Regulation 1(5) and the guidance set out above that it is not of itself enough for the material to count as PPE that it be ‘served’ (as it was in this case). When dealing with the issue as to whether served material should count as PPE, Holroyde J, said this:
“If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2, the Determining Officer (or, on appeal, the Costs Judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I have indicated above, the LAA's Crown Court Fee Guidance explains the factors which should be considered. This is an important and valuable control mechanism which ensures that public funds are not expended inappropriately.
If an exhibit is served in electronic form but the Determining Officer or Costs Judge considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by Paragraph 20 of Schedule 2”.
It is also clear that downloaded material need not be regarded as one integral whole, as a witness statement would be, and that when exercising discretion under paragraph 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 context.
The Crown Court Fee Guidance, which was updated in March 2017, prior to the decision in SVS, provides as follows:
“In relation to documentary or pictorial exhibits served in electronic form (i.e., those which may be the subject of the Determining Officer's discretion under paragraph 1(5) of the Schedule 2) the table indicates –
“ The Determining...
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