Tel- Ka Talk Ltd v Revenue & Customs

This is an appeal by Clarke Kiernan, a firm of solicitors in Tonbridge, against the decision of the Legal Services Commission to disallow a fee for a sentencing hearing following committal for sentence.

The solicitors were instructed to represent 2 defendants, Shaun Sturmer and Lee Lewis, who were each charged with affray. They were both committed for sentence to Maidstone Crown Court where they were sentenced on 25^th April 2008.

Sturmer and Lewis had each been granted a separate representation order by the Central Kent Magistrates’ Court and I note that the case numbers recorded on the representation orders are different. However when the matter was dealt with in the Crown Court both defendants were listed under the same case number.

The solicitors claimed a fee of £250 for each defendant. In relation to Sturmer they claimed £42.60 for travelling expenses and in relation to Lewis they claimed £63.45 for travelling expenses. However the Commission allowed only one fee; although it allowed both sets of travelling expenses. In its letter dated 12^th July 2008 the Commission explained:

When the solicitors requested a review of that decision the Commission explained in its letter dated 18^th August 2008:

Litigators’ fees are now prescribed by Schedule 2 to the Criminal Defence Service (Funding) Order 2007 (as substituted by SI 2007/3352). Part 1 of the Schedule sets out some general provisions of definition and scope, part 2 provides for graduated fees for guilty pleas, cracked trials and trials, and part 3 provides for fixed fees.

Under the heading “Fees for appeals and committals for sentence hearings” paragraph 12 (which falls within part 3) provides:

For a “committal for sentence” the table provides a “fee payable (£ per proceedings)” of £212.77, which with value added tax at 17.5% would give a gross figure of £250.

It is not in issue that the solicitors’ entitlement to fees for representing these 2 defendants arises only under paragraph 12. The only issue on the appeal is whether, in the circumstances of this case, paragraph 12 and the table following paragraph 14 entitle the solicitors to 2 fees or only one.

The solicitors’ grounds of appeal emphasised the definition of “case” in paragraph 1 of schedule 2, viz.:

“proceedings in the Crown Court against any one assisted person –

…..

(b)

arising out of … a single committal for sentence”.

However Mr Edwards, who represented the solicitors at the hearing of the appeal, appeared to concede that the emphasis may have been misdirected as “case” in fact plays no part in either paragraph 12 or the table.

Mr Edwards submitted that on a committal for sentence each defendant should be viewed independently. Where two defendants were tried or dealt with together in the magistrates’ court, one may be committed for sentence and the other not. Obviously if both are committed the sentencing judge would have to consider each defendant separately. There would be little common work.

While I accept that and while I accept that it may be perceived to be unfair that a solicitor representing 2 defendants is paid the same fee as a solicitor representing one, this appeal can turn only on the wording of the regulations. For the same reason, while I have considered paragraph 2.3.29 of the Litigator Graduated Fee Scheme Guidance published by the Commission, it has not affected (or assisted) my interpretation of the regulations.

The table following paragraph 14 entitles a litigator to a fee of £212.77 net “per proceedings”. “Proceedings” is not defined in the Funding Order. However it is clear that “proceedings” may involve more than one defendant, in distinction to the definition of “case”: see for example the definition of “related proceedings” in article 2 and provisions such as paragraph 17 of schedule 2 to which I refer below.

It seems to me that the combined effect of paragraph 12 and the table following paragraph 14 is that where a solicitor is “instructed in … a sentencing hearing following a committal for sentence to the Crown Court” [para 12] the “fee payable” [para 12 and the table] is “£212.77 per proceedings” [the table]. “Proceedings” can involve more than one defendant and if there is only one “proceedings” only one fee will be payable however many defendants are represented by the solicitor.

That would appear to be consistent with the scheme of schedule 2 which generally allows one fee where a litigator represents more than one defendant but allows an uplift for representing additional defendants. However no uplift is prescribed in relation to the hearings listed in paragraph 12. Had it been intended that there should be an uplift for representing more than one defendant on a sentencing hearing following committal for sentence, provision could easily have been made for that; perhaps along similar lines to paragraph 17 which provides for uplifts “where a litigator represents more than one assisted person in [sent or transferred] proceedings” which are discontinued.

The interpretation that I have suggested would also seem to be consistent with the use in the table of the word “proceedings”. Had it been intended that a separate fee would be payable for each defendant committed for sentence, the table could have provided for a fee payable per “case” (with the limited definition of that word provided by paragraph 1 of schedule 2).

As it would appear that these 2 defendants were dealt with at the Crown Court together at one hearing with the same case number, the solicitor instructed on the sentencing hearing is entitled to only one fee for those “proceedings”. Accordingly the appeal is dismissed.

Mr Edwards told me that my decision may affect a large number of cases. On that basis and as this is solely a question of interpretation of the Funding Order I would be willing to certify a point of principle of general importance for the purposes of article 31(1).