R David Edward Ames v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde |
| Judgment Date | 23 August 2018 |
| Neutral Citation | [2018] EWHC 2250 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/992/2018 |
| Date | 23 August 2018 |
[2018] EWHC 2250 (Admin)
Lord Justice Holroyde and Mr Justice Green
Case No: CO/992/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Anthony Speaight QC (instructed by Cartwright King) for the Claimant and Interested Parties
Paul Nicholls QC and Malcolm Birdling (instructed by Government Legal Department) for the Defendant
Hearing dates: 12 th, 13 th June 2018
Judgment Approved
Mr David Ames (“the claimant”) has been charged by the Serious Fraud Office (“SFO”) with offences of fraud. He faces what is expected to be a long and complex trial. He has the benefit of public funding for his defence at that trial. He is represented by solicitors Cartwright King, and hopes to be represented by counsel of his choice, the Interested Parties Ms Henry QC and Mr Miller (collectively, “counsel”), together with a second junior barrister who is yet to be instructed. However, counsel have been unable to reach agreement with the Legal Aid Agency as to their remuneration. In these proceedings, the claimant – supported by counsel as Interested Parties — seeks judicial review of the final offer made by the Legal Aid Agency in respect of counsel's fees. For convenience, and because the Legal Aid Agency administers the public funding although the Lord Chancellor has responsibility for its provision, we shall refer to the defendant as “the LAA”. A rolled-up hearing was directed, at which the court would consider the application for permission to bring judicial review proceedings and, if permission be granted, would determine the substantive application for judicial review. The claimant subsequently made applications for permission to amend his Statement of Facts and Grounds, for an extension of time in which to file witness statements and for relief from sanctions for failing to file the trial bundles within the relevant time limit. All these applications and claims are resisted by the LAA. At a hearing on 12 th and 13 th June 2018, the court heard submissions on all matters, and reserved judgment. This is the judgment of the court, to which we have both contributed.
We note at the outset, as we did at the hearing, that although no application has been made for the court to impose reporting restrictions, or otherwise to derogate from the important principle of open justice, it is nonetheless important to keep in mind that the claimant faces a criminal trial. We therefore remind anyone who is minded to publish this judgment of the need to avoid publishing anything which may adversely affect the fairness of the criminal trial. Under the Contempt of Court Act 1981, it can be a contempt of court to publish anything which creates a substantial risk that the course of justice in that criminal trial will be seriously impeded or prejudiced.
The criminal proceedings
It is sufficient for present purposes to summarise very briefly the nature of the charges against the claimant. He is accused of fraud in relation to the collapse of a group of companies, the Harlequin group, whose business had been the sale of properties in holiday locations, in particular in the Caribbean. It is alleged that some 9,000 properties, with a total completion value of £1.4 billion, were sold off-plan, and that some 8,200 deposits totalling about £400 million were received from would-be purchasers. However, only 200 properties had been built, and no more than 20 sales completed, when Harlequin went into liquidation in 2014. The scale of the alleged fraud is, therefore, very substantial.
The SFO began a formal investigation into the Harlequin group in March 2013. Unusually, that investigation did not include either a search of the premises occupied by the claimant and his companies or the seizing of any of the computerised records of the business of the group. Those records therefore remain under the control of the claimant. As will be seen, that is a feature of the criminal proceedings on which he and counsel place heavy emphasis in this claim for judicial review.
The claimant, then represented by different solicitors, was interviewed under caution by the SFO in April 2013 and November 2015. In very brief summary, his answers were to the effect that he had acted honestly throughout, that he had relied on the advice of professionals, that he had been badly let down by some of the professionals whose advice he had trusted and that he had himself been a victim of fraud.
The claimant's legal representation in the criminal proceedings
The claimant made his first appearance in a magistrates' court in March 2017. He was granted a representation order which named Cartwright King (hereafter, “the solicitors”), as his solicitors. The Interested Party Mr Miller was instructed as junior counsel. The case was transferred to the Crown Court at Southwark, where the claimant made his first appearance on 19 th April 2017. The Interested Party Ms Henry QC was then instructed as leading counsel.
In the summer of 2017 the LAA entered into a contract with the solicitors under the Very High Cost (Crime) Cases (“VHCCs”) scheme. No agreement was reached as to counsel's fees. The fact that no agreement has been reached was the subject of observations at hearings before the nominated trial judge, HH Judge Loraine-Smith, in September and November 2017. Officials of the LAA attended both hearings.
The claimant was arraigned on 7 th November 2017. He pleaded not guilty to all charges. A trial date of 7 th January 2019 was set, with an estimated length of trial of 14–16 weeks. That trial date was however subsequently vacated, and as we understand it there is at present no fixed date for the trial.
We will refer below to the chronology of the correspondence between counsel and the LAA, and the fee offers which the LAA have made. Before doing that, it is convenient to summarise the procedural history of this application for judicial review, and to set out the relevant statutory framework.
The judicial review proceedings
A letter before claim, indicating an intention to apply for judicial review, was sent by counsel to the LAA on 23 rd December 2017. The LAA responded on 19 th January 2018. The claim form and Statement of Facts and Grounds were issued in March 2018. The defendant's Summary Grounds of Resistance were filed in early April 2018.
The application for permission to apply for judicial review was considered by Julian Knowles J on 11 th April 2018. He directed the rolled-up hearing to which we have referred. He gave case management directions, including a direction as to the time for serving detailed grounds for contesting the claim. The LAA complied with that direction by filing Detailed Grounds of Resistance on 2 nd May 2018. He further directed that any application by the claimant to lodge further evidence must be made within 7 days of the service of the Detailed Grounds of Resistance, and that the claimant must file and serve a trial bundle not less than 2 weeks before the judicial review hearing. The claimant did not comply with those orders.
On 30 th May 2018 the claimant applied for permission to amend his Statement of Facts and Grounds, for an extension of time to serve witness statements by counsel and by Ms Graver, a person with experience of fees in VHCC contracts, and for an extension of time to serve the trial bundles.
We now turn to the statutory framework relevant to this claim for judicial review.
The statutory framework and the IFFO scheme
Sections 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ LASPO”), so far as material for present purposes, provide:
“ 1 Lord Chancellor's functions
(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.
(2) In this Part, “legal aid” means … (b) services consisting of advice, assistance and representation required to be made available under section 13, 15 or 16 or paragraph 4 or 5 of Schedule 3 (criminal legal aid). …
2 Arrangements
(1) The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purpose of carrying out the Lord Chancellor's functions under this Part. …
(3) The Lord Chancellor may by regulations make provisions about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part.”
Section 16 of LASPO, so far as material, provides:
“ 16 Representation for criminal proceedings
(1) Representation for the purposes of criminal proceedings is to be available under this Part to an individual if –
(a) the individual is a specified individual in relation to the proceedings, and
(b) the relevant authority has determined (provisionally or otherwise) that the individual qualifies for such representation in accordance with this Part (and has not withdrawn the representation).”
It is common ground between the parties that the criteria in section 16 are met in the case of the claimant. He is therefore entitled to representation in accordance with LASPO and regulations made pursuant to LASPO.
The Criminal Legal Aid (Remuneration) Regulations 2013, made pursuant to section 2(3) of LASPO, make provision for payment of fees in accordance with the graduated fee scheme. That scheme applies to the majority of criminal cases in the Crown Court, but by regulation 3(8) it does not apply to VHCCs. VHCCs are defined by regulation 2, which so far as is relevant to advocates provides as follows:
“‘Very High Cost Case’ means a case in which a section 16 determination has been made and which the Director classifies as a Very High Cost Case on the grounds...
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