K & Ors, R v

On 2 November 2004 the Court handed down its judgment dismissing this appeal. As set out in paragraph 41 of the judgment, the Court indicated it would hold a short hearing in relation to costs.

When leave to appeal was granted, Representation Orders were made. Thereafter forms in relation to the means of all the appellants should have been lodged with the Court. K and G had not lodged their forms at the time of the hearing of the appeal. In the case of K this was due to a lack of understanding of the procedure in that his advisers did not consider it necessary to lodge new forms in the Court of Appeal. The grant of a Representation Order in the Court of Appeal is a separate matter; new forms have to be lodged.

In the case of G, the forms had not been lodged because G had been for the past seven weeks in the Far East on business. The court observed at the outset of the appeal that it did not consider this a satisfactory explanation. At the hearing after the hand down of the judgment, Mr Lovell-Pank QC was not able to give any further explanation.

I consider that for the future, the Court of Appeal Office should, if the requisite forms have not been lodged two weeks before the hearing, list the matter before the Registrar of the Court so that the advocate can attend, without fee, and explain the failure to lodge the form. The Registrar would then have an opportunity of revoking the Representation Order in an appropriate case; any appellant, who was unable to provide exceptional reasons for the failure, would be at risk of to having the Representation Order revoked. The lodging of the forms and the supplying of accurate information is an important matter and not a formality; the Court must be in a position when it gives judgment to be able to make an Order in the appropriate case for the recovery of funds from the appellant who has failed in his appeal rather than letting the burden fall on the taxpayer. Such cases are not likely to be at common, given the nature of the work of the court, but it is of importance that wherever appropriate, funds are recovered from appellants with means when they fail in their appeal.

When a court grants a Representation Order for an appeal, the representation order only covers work on and attendance or appearance at the hearing in respect of the grounds upon which the Court has granted leave to appeal. It does not cover any work, preparation or time in court which is done or spent in respect of any renewed application in respect of ground on which leave to appeal has been refused. If, on a renewed application made at the same time as an appeal, leave is granted, the practice of the Court is exactly the same as applies when a renewed application is made separately.

It is therefore essential, in every case where there is a failure of a renewed application for leave to appeal made at the same time as an appeal and the Court does not specially and exceptionally order that the advocates or solicitors representing the applicant are entitled to a representation order for the costs of the failed application, that the fee notes submitted by the advocates or solicitors show a detailed account of the work done for the appeal and a detailed account of the work done for the renewed application for leave to appeal. This detailed split is necessary so that the Registrar of the Court can apply detailed scrutiny to the amount claimed so as to ensure that no amount is paid under the Representation Order in respect of the renewed application.

In this particular case, as the judgment of the Court shows:

As the appeal failed, I have to consider whether an Order for the Recovery of Defence costs should be made against each of these appellants. In doing so, it is necessary to bear in mind the fact that each of the appellants may very well have very significant sums to pay to their advocates for the fees charged in respect of the renewed applications; it will obviously be necessary for each of them to supply receipted fee notes for the amount actually paid. In respect of each appellant confiscation proceedings are pending. However, unless an Order is made, I do not propose to take into account the prospect of such Orders being made.

It was submitted that as leave to appeal had been given, it would not be correct to make a recovery of Defence Costs Order; I do not accept that submission. The appellants decided to appeal and they failed; I see no reason why they rather than the taxpayer should not pay for the costs incurred. There is no exceptional reason of public interest involved.

In respect of the appellant K, a revised form was submitted prior to the handing down of the judgment; this discloses no income from the appellant; I was told he was not working and dependent on his family for support. The form did disclose the existence of equity of £112,000 in his residence. In the circumstances of this case, I see no reason why a contribution should not be made to the costs of the defence out of the equity of the house above £100,000, but I will reserve specifying the amount of the Order until the fee for this appellant payable in respect of the appeal has been assessed and a receipted fee note provided in respect of fees paid to his solicitor or advocate in respect of the renewed application.

As to the appellant G, the form submitted discloses an income of £24,000 which is the figure the form makes clear is not to be taken into account, unless there are exceptional circumstances. As to his capital, the form discloses that his residence is valued at £250,000, there is a mortgage of £150,000 with an equity of £100,000; the form makes clear at the first £100,000 of equity in the principal residence is not to be taken into account unless there are exceptional circumstances. The form gives very few other details of the appellant’s means save that he has a High Court judgment against him of £350,000. I do not consider there is sufficient information disclosed by this form; I therefore refer the issue of the financial resources of this appellant to the Legal Services Commission for a further investigation of his means and a report to the Court. This is necessary, particularly in the light of the fact that the explanation given to the Court for his failure to submit the necessary forms prior to the hearing of the appeal was that he was away on business in the Far East. Until the further investigation has been completed, I will reserve consideration of whether a Recovery of Defence Costs order should be made, but to enable me to deal with the matter, it will be necessary for an assessment to be made of the fee payable to his advocate for the appeal and a receipted fee note must be provided in respect of any fees paid in respect of the renewed application.

As to the appellant M, he is in receipt of working family tax credit and an invalid carers allowance. However he has equity in his house of £205,000. He has been convicted of involvement in a significant fraud; I see no reason why he should not make a contribution from the equity of his house to the amount that the taxpayer has expended on his legal representation in the failed appeal to this Court. I will assess the amount of that contribution when the amount of the fee payable to his advocate has been assessed by the Registrar and a receipted fee note provided for any amount he has actually paid to his advocate in respect of the renewed application.