Zacharia, R. v

This appeal concerns the claim of the Appellant, McCarty & Co, for a fee for special preparation under the Litigator Fee Scheme.

The Appellant had acted for Zakey and Tony Zacharia in the Kingston Crown Court on a multi-hander in which, with six or seven others. The Defendants faced charges of supplying class A drugs over a period of 18 months. The trial lasted two to three weeks and had resulted in the conviction of all Defendants; those who pleaded guilty received terms of imprisonment of between ten and twelve years, and those who were convicted following trial faced terms of 15-18 years.

On 16 July 2009, the Appellant lodged his litigator fee claim in form LF1. This sought total costs of £119,410.51 plus VAT, which included 155 hours, 54 minutes for special preparation in relation to consideration of audio evidence. This had been relied on by the Crown and had been obtained using a probe which had been hidden within the Defendant family's work place over a period of six months. Extracts from the audio evidence had been transcribed and 2,250 (approximately) pages had been served as transcribed evidence from the probe. In addition, the Crown had served a hard drive of which the entirety of the audio evidence was stored. As this was the only evidence relied upon against Zacharia Snr, the Appellant firm took a view that it was essential to listen to the probe, and also to check that where transcripts had been served, these had accurately recorded the conversations.

The claim for special preparation amounted to £14,043.10 plus VAT which the Legal Services Commission refused in its entirety. Dissatisfied, the Appellant lodged LFA1 and thereafter requested written reasons for the disallowance These were dated 24 November 2009 and said this:-

On the appeal, Mr Dawnay represented his firm. He submitted that audio evidence is always intended to be reduced to transcript form. By way of example he gave transcripts of interview evidence, where that evidence is initially tape recorded but then reduced to written form when transcribed and served. The position was no different here where the Crown had relied on audio evidence, some, but not all, of which had been transcribed and served as prosecution documents. Mr Dawnay accepted that where transcripts are served with taped interviews with the Defendant, the cost of listening to the audio tape does not form part of the page count, merely when the accuracy of the transcript is being checked against the tape recording. The position here, was different. The Crown had transcribed those parts of the evidence upon which they relied without indicating where that material appeared on the probe. In these circumstances it was necessary for the fee-earner to listen to the entirety of the tape; this was not "checking" which would have been included by analogy within the page count, had these been transcripts of interviews. On the contrary, the fee-earner had been involved in original work, namely listening to the probe which was capable of being converted into a written document in transcript form.

In principle, I consider that Mr Dawnay's submission is correct. I put to him the decision of the Lord Chancellor v Michael Reed [2009] EWHC 2981 (QB) in which Mr Justice Penry-Davey had considered the legislative scheme which applies, and in particular whether the listening of tapes can be paid as "special preparation". At paragraph 9(d) the Learned Judge said this:-

Mr Dawnay addressed this difficulty, correctly in my view, by pointing to the fact that the audio tape served here, namely the hard drive of the entirety of the six months probe, was capable of conversion; not only that, but conversion had happened in this case because the Crown had, selectively, served in document form part of the probe evidence.

In my judgment, having regard to Mr Dawnay's reasons, I consider that the Legal Services Commission ought not to have disallowed the claim for special preparation in its entirety. The written reasons contend that it has always been the case that special preparation claims can only be made for viewing electronic evidence, that is defined as PPE; therefore it is specifically restricted to evidence that can be put into pages and that, in effect, any evidence that is audio visual is excluded. In my view, that is not the situation here. No audio visual evidence is being relied on. On the contrary, the Crown simply transcribed some but not all of the audio evidence obtained by the probe. Had the entirety of the probe evidence been transcribed, this would have formed part of the page count because the claim for those items was paid by the LSC upon receipt of the LF1. In short therefore, I start from the proposition that because the audio probe evidence could be put into pages (and indeed in part, that was done), it is capable of attracting a fee for special preparation.

So far as the amount is concerned, this is more difficult. As I have said, the Appellant has already been paid for the probe evidence which was converted into a document having been transcribed. In my view, this should not attract an additional fee where the work involved was checking. Mr Dawnay and I did the best we could to separate out that aspect of the work and came up with about 75 hours. Having separated out that figure, and doing the best I can, I would allow a further 75 hours for considering the probe evidence that had not been transcribed and converted into document form, but was capable of being so converted. At one point, I took the view that this should be at Grade C but Mr Dawnay persuaded me that the complexity of the case justified a Grade A in view of the fact that the probe was the entirety of the evidence relied upon against Zacharia Senior. He also explained that where the Grade C had been involved, this was at Court when Leading Counsel had required him to listen to the probe during the course of the trial. I am satisfied, therefore, that the 75 hours should be Grade A. As to the rate, the Legal Services Commission allowed enhancement on preparation. This was important work. Having been satisfied that the case merited enhancement, there was no justification in my view, for not extending this for the probe evidence so the appeal will succeed to the extend that 75 hours at Grade A will be allowed uplifted by 100%.