Burbidge, R. v

This is yet another appeal against the decision of the Legal Services Commission to pay less than the amount sought by the appellant firm of solicitors for Pages of Prosecution Evidence (“PPE”) in the firm’s Litigator Fee claim 1 (“LF1”) submitted for payment under the Graduated Fee Scheme (“GFS”). The sum in question is £335.84. For the reasons which follow, I allow the appeal and in addition to the small sum in dispute being paid to the appellant, the LSC must also pay costs exceeding this sum, to my mind a complete waste of public funds, for reasons which I shall give.

The background is that the appellant firm, Jonas Roy Bloom, solicitors, acted for the defendant in his prosecution for causing death by dangerous driving. This was a tragic case. On 3 January 2009 the defendant and his friends drove to a nightclub in Digbeth, Birmingham, in the defendant’s car. He was then just 17 and his passengers, a Mr Carpenter and a Mr Grattan, 18 and 19 respectively. The trio stayed at the nightclub until about 4.00am, at which point they walked back to the car and decided that they wanted to find something to eat. The defendant drove, Mr Grattan sat in the front passenger seat and Mr Carpenter in the back. During the journey, the defendant applied the handbrake whilst the vehicle was in motion, causing a slight skid. The manoeuvre was repeated “for a laugh” but unfortunately the vehicle went out of control, skidded, spun, hit two metal poles and flipped on its side. Although the defendant and Mr Grattan were able to climb out of the vehicle uninjured, Mr Carpenter, who had not been wearing a seat belt, was ejected through the offside rear passenger window and crushed underneath the car when it landed on its offside. He sustained extensive head injuries and died immediately. The appellant firm acted for the defendant in the subsequent charge that he had caused death by dangerous driving. A guilty plea was entered, and the case was concluded on 11 May 2009.

On 21 May 2009, the appellant lodged its LF1 with the LSC. Section 5 claimed PPE of 156. The claim was processed on 2 July 2009, when only 58 PPE were allowed for the following reason, “Court records show 58 PPE”.

On 8 July 2009 the appellant served a litigator fee review form in LF2. Section 3 said this:

“Please provide any additional information in support of your view.

The 154 pages is made up as follows:

Statements served with the original committal bundle - 28

Exhibits served with the original committal bundle - 30

Post mortem reports served on us at a later date - 2

Collision investigation report and collision notes – 38 (this is marked as an exhibit – Exhibit 15. It is referred to in the exhibit list, though it was not attached to the original exhibit bundle. It was also referred to in the prosecutor’s opening statement (a copy of which we have)).

Photographs – 56 (these are referred to and exhibited in the statement of Thomas Bragg (page 17 of the statements). Copies of all these documents can be provided if you wish. However, we do not wish to incur the expense of copying them if it is your intention to ignore them. Please note that page count was agreed with the Court Clerk, so we cannot understand how the Court records show 58 pages.

We do accept that we appear to have made an error in stating that the number of photographs was 58, when it was in fact 56. However, this still leaves a “PPE” of 154.

If you do wish to have copies of any documents, or indeed are willing in any way to engage with us to establish the correct PPE count, we will do whatever is necessary to help.

Please note that in the event of an appeal being necessary, we shall have to seek time on a costs basis. We have no doubt that the Costs Judge will take into account in determining this application whether or not you have made attempts to agree the PPE count”.

On 5 October 2009 the LSC processed the LF2 appeal. Its letter of that date said this:

“In the light of the evidence provided, I have authorised your claim on the basis of 95 PPE being served.

Your litigator fee is now £843.16.

He will receive a balance of £227.68 in your next BACS statement”.

Still dissatisfied, on 7 October 2009 the appellant lodged an appeal against the LSC’s decision. In paragraph 7 of the Grounds of Objection, the appellant stated that “It is not clear what evidence they refer to (the itemised pages we set out do not total 95 in any calculation so far as we can see) and because they did not take us up on our offer to provide the actual pages”.

At the hearing of the appeal, which was conducted by telephone, Mr Henry represented his firm. With justification, in my view, Mr Henry emphasised the point made in paragraph 7 of the Grounds of Objection that the LSC had given no explanation for rejecting the LF2, still less any reason why the PPE had been increased but not by the amount sought, and that the offer to produce the totality of the documentation had not been taken up. In my judgment, the LSC’s reasons given in the letter of 5 October 2009 were defective in all three respects.

The Criminal Defence Service (Funding) Order 2007 applies in this case (SI1174). Part 1 of Schedule 2 sets out the definition and scope of the litigator’s Graduated Fee Scheme. Paragraph 1 then says this:

“(2)

For the purpose of the schedule, the number of pages of Prosecution Evidence served on the Court includes –

(a)

witness statements;

(b)

documentary and pictorial exhibits;

(c)

records and interviews with the assisted person; and.

(d)

records and interviews with other defendants;

which form part of the committal or served prosecution documents or which are included in any Notice of Additional Evidence, but does not include any document provided on CD-rom, or by other means of electronic communication”.

In the present case, the Clerk of the Warwick Crown Court agreed with Jonas Roy Bloom in the firm’s capacity as advocates and with the prosecution, that the page count was 156 and the firm, as advocates, has received payment for that number of pages. However, by paying the firm as litigators under the Litigator Fee claim, only for 95 pages, the inference must be drawn that the LSC does not accept the validity of the PPE total agreed between the trial advocates and the Court.

The validation of PPE has historically caused problems, largely because the Court’s CREST system has failed to record correctly the number of prosecution papers served on the Court, in particular when material has been lodged piecemeal. This has lead to an abundance of appeals to Costs Judges nearly all of which have been allowed. On 16 December 2009, new PPE Guidance was published by the LSC. Paragraph 31 of part B says this:

“(a)

CPS [Crown Prosecution Service] will provide paginated evidence bundles supported by an endorsement of the PPE on the committal bundle and updated running totals of PPE on any NAE [Notice of Additional Evidence].

(b)

Defence advocates complete the PPE form in accordance with the PPE process and provide objective evidence of the PPE.

(c)

HMCS update information on CREST.

(d)

Defence advocates submit claims to HMCS [Her Majesty’s Courts Service].

(e)

Litigators submit claim to the LSC supported by evidence of the claimed PPE (along with the documents specified in the LF1) [The footnote says that litigators are no longer required to submit the PPE form].

(f)

The LSC validate claims against CREST and supporting evidence. Where the information is inconsistent, the LSC will liaise with HMCS so the information on CREST can be updated if necessary”.

Whilst it is right that this Guidance was not in force at the date that the appellant’s LF1 and LF2 were lodged, it is plain from the submissions I have heard, not only in this case but others, that the process for validating PPE is unsatisfactory and, in particular, does not provide the advocates or litigators with any confidence that their claims will be dealt with on a consistent basis. The first point to make is that there is an apparent absurdity in the system which leads to Crown Court making payments based upon a level of PPE agreed between advocates (both defence and prosecution) as officers of the Court and the Clerk of the Court which is then rejected by the Legal Services Commission, as happened here. Had there been any doubt in the mind of the LSC about the legitimacy of the claim, in my view the short answer would have been to take up the appellant’s offer of providing copies of the documents albeit that expense would have been incurred in doing so. Instead, as I have said, the letter of 5 October 2009 did not do this, still less did it provide the appellant with any reason why the appeal had been allowed in part, but not in full.

In the present case, prosecution papers were not served in the manner envisaged under paragraph 31(a) of the PPE Guidance. (No criticism is intended as the case preceded the date of the Guidance). However Mr Henry told me, and I accept that prosecution evidence is not always paginated, especially in the case of exhibits where these are lengthy. Moreover PPE is seldom served in one tranche. In the present case, the Crown did not serve the photographic evidence with the witness statements which ran to 56 pages all unpaginated. The collision report too had been served later, also unpaginated.

This practice, in my view, brings into sharp focus the fact that only if the CPS complies with paragraph 31(a) of the PPE guidance, will the new process of validating PPE prove workable. If the LSC persists in its apparent refusal to accept PPE agreed between advocates and signed off by the Court Clerk and, at the same time, the CPS does not serve paginated evidence bundles duly endorsed with updated running totals of PPE, and that information fails to be correctly inputted on CREST as envisaged under paragraph 31(c) of the PPE guidance, then appeals of this nature will continue to come before this Court, with the consequent further waste in public funds that such appeals involve.

Mr Henry told me of another case in the pipeline involving 14,000 pages PPE which the advocates have already agreed and the Court Clerk has already approved, but where the change in guidance has caused anxiety because the claim may be penalised in the absence of paginated bundles or an exhibit list as these were not provided by the CPS. Plainly in such a case the LSC must consider the claim on its merits and take such steps as are necessary to verify the PPE and not simply issue a pro forma letter as happened here. I should add that in my judgment, I do not consider that the reasons for disallowances of this nature given in such letters is adequate. In Budgens Stores Ltd. V Hastings Magistrates Court (2009) EWHC 1646 (Admin) , the Divisional Court on Judicial Review quashed an assessment of costs in the Magistrates Court where the appropriate authority had failed to give sufficient reasons for the disallowances made. At paragraph 26, Lord Justice Richards said this:

In my view, the inadequacy of the LSC’s reasons in this case would also be susceptible to quashing by Judicial Review and it follows that in cases of this nature which come before Costs Judges on appeal , it is essential that the LSC first gives proper reasons so that the Appellant is left in no doubt as to why the claim in question was refused. That did not happen here and it is to be hoped that the LSC will take on board what I have said in these reasons and that further claims of this type will thereby be avoided.

In the present case, I am satisfied that the correct page count was 154, the discrepancy being explained by the photographs and collision report which Mr Henry lodged before the appeal and which I viewed and read. It follows that the appeal will be allowed in full with costs.