The Secretary of State for Justice the Lord Chancellor v Svs Solicitors
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 11 May 2017 |
| Neutral Citation | [2017] EWHC 1045 (QB) |
| Docket Number | Case No: QB/2016/0280 |
| Court | Queen's Bench Division |
| Date | 11 May 2017 |
[2017] EWHC 1045 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holroyde
Master Rowley (sitting as an Assessor)
Case No: QB/2016/0280
Mr David Bedenham (instructed by Government Legal Department) for the Appellant
Mr Anthony Montgomery (instructed by SVS Solicitors) for the Respondent
Hearing date: 21 st March 2017
In 2015 the Respondent to this appeal, SVS Solicitors ("SVS"), represented a Ms D in criminal proceedings. SVS, and counsel instructed by them, acted under the terms of a representation order granted to Ms D by the Legal Aid Authority ("LAA") on 28 th September 2015. The case fell within the graduated fee scheme. Ms D was one of four defendants sent for trial in the Crown Court at Blackfriars on a charge of becoming concerned in a money laundering arrangement. The prosecution alleged that all four were part of a criminal group led by the first defendant, who was said to have arranged to pass a rucksack containing nearly £100,000 in cash to the fourth defendant, a professional money launderer. The principal allegation against Ms D was that she had driven the second defendant, and the rucksack containing the cash, to a meeting place at which all four were arrested. At the conclusion of the trial, Ms D was acquitted. Her co-accused were convicted. SVS thereafter submitted their claim for fees to the LAA. In doing so, they included 1,571 pages of electronic material in their total count of the pages of prosecution evidence. On 19 th July 2016 an LAA Determining Officer refused that part of the graduated fee claim, concluding that the 1,571 pages of electronic material were unused material and therefore did not count as PPE. SVS appealed against that decision to Costs Judge Simons, who on 28 th November 2016 allowed their appeal, concluding that the electronic material should properly be included when counting the pages of prosecution evidence. The Lord Chancellor now appeals against that decision of Costs Judge Simons.
I am grateful to Mr David Bedenham for the Lord Chancellor, and Mr Anthony Montgomery for SVS, for their helpful submissions in a case which they both submit – and I agree — raises an important point as to the calculation of the number of pages of prosecution evidence in a graduated fee case. I am also grateful to my assessor, Master Rowley, whose experience as a Costs Judge has been very helpful to me, though of course the decision on the appeal is mine alone.
The statutory framework:
It is now some 20 years since the graduated fee scheme was introduced to provide for the remuneration of solicitors and counsel, initially in relation to comparatively short cases in the Crown Court. As time has passed, the scope of the scheme has been expanded, and in practice it now applies to the majority of Crown Court cases. As is well known, the scheme provides for legal representatives to be remunerated by reference to a formula which takes into account, amongst other things, the number of pages of prosecution evidence (hereafter, "PPE") and the length of the trial. The scheme is intended to be administratively simple, and to avoid (for the most part) the need for a Determining Officer to consider the extent of the work actually done by solicitors and/or counsel in a particular case. Importantly for present purposes, one feature of the scheme is that it generally does not provide remuneration for defence lawyers to review and consider material which is disclosed by the prosecution as unused material, however extensive that material may be and however important it may be to the defence case: a fee for special preparation may be claimed in specified (and very limited) circumstances, but in general the remuneration for considering unused material is deemed to be "wrapped up" in the fees calculated in accordance with the statutory formula.
Payment under the graduated fee scheme is, and was at the material time, governed by the Criminal Legal Aid (Remuneration) Regulations 2013, SI 2013/435, as amended. In those Regulations, the solicitor who is named in the representation order as representing an assisted person is referred to as a litigator. By regulation 5(1) –
"Claims for fees by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 2 to these Regulations."
Schedule 2 sets out the scheme by which a graduated fee is calculated. As I have indicated, an important aspect of the formula by which the fee is calculated is the number of PPE. In this regard, the relevant provisions of paragraph 1 of schedule 2 are in the following terms:
"(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."
Although this appeal is concerned solely with the remuneration of solicitors, I note in passing that Schedule 1, which governs the payment of graduated fees to advocates, contains an identical provision as to PPE.
Regulation 24 provides for the appropriate officer (the Determining Officer) to determine the fees payable to a litigator in accordance with Schedule 2, and to authorise payment accordingly.
The LAA publishes "Crown Court Fee Guidance", which contains information as to how graduated fee claims will be processed. The Guidance has most recently been updated in March 2017, but without alteration of the terms of the section which is relevant to this appeal. In paragraph 2 of Appendix D, "PPE Guidance", there is a table which summarises the "PPE criteria". 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 Officer will take into account whether the document would have been printed by the prosecution and served in paper form prior to 1 April 2012. If so, then it will be counted as PPE. If the determining officer is unable to make that assessment, they will take into account 'any other relevant circumstances' such as the importance of the evidence to the case, the amount and the nature of the work that was required to be done and by whom, and the extent to which the electronic evidence featured in the case against the defendant."
At paragraph 38 of Appendix D, the Guidance gives examples of documentary or pictorial exhibits which will ordinarily be counted as PPE. They include –
"Raw phone data where a detailed schedule has been created by the prosecution which is served and relied on and is relevant to the defendant's case.
Raw phone data if it is served without a schedule having been created by the prosecution, but the evidence nevertheless remains important to the prosecution case and is relevant to the defendant's case, eg it can be shown that a careful analysis had to be carried out on the data to dispute the extent of the defendant's involvement.
Raw phone data where the case is a conspiracy and the electronic evidence relates to the defendant and co-conspirators with whom the defendant had direct contact."
A representative who is dissatisfied with the decision of the Determining Officer may appeal to a Costs Judge pursuant to Regulation 29. Notice of the appeal must be given in writing to the Senior Costs Judge, and copied to the Determining Officer. The notice of appeal must be in specified form and must state whether the appellant wishes to appear or to be represented, or will accept a decision given in his absence. Provision is then made by Regulation 29 for the Lord Chancellor to take part in the appeal:
"(6) The Senior Costs Judge may, and if so directed by the Lord Chancellor either generally or in a particular case must, send to the Lord Chancellor a copy of the notice of appeal together with copies of such other documents as the Lord Chancellor may require.
(7) With a view to ensuring that the public interest is taken into account, the Lord Chancellor may arrange for written or oral representations to be made on the Lord Chancellor's behalf and, if the Lord Chancellor intends to do so, the Lord Chancellor must inform the Senior Costs Judge and the appellant.
(8) Any written representations made on behalf of the Lord Chancellor under paragraph (7) must be sent to the Senior Costs Judge and the appellant and, in the case of oral representations, the Senior Costs Judge and the appellant must be informed of the grounds on which such representations will be made.
(9) The appellant must be permitted a reasonable opportunity to make representations in reply.
(10) The Costs Judge must inform the appellant (or the person representing him) and the Lord Chancellor, where representations have been or are to be made on the Lord Chancellor's...
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