Case No: T2009 7044, SCCO Ref: 07/11
ON APPEAL FROM REDETERMINATION
CROWN COURT AT WARWICK
Clifford’s Inn, Fetter Lane
London, EC4A 1DQ
Before :
ANDREW GORDON-SAKER
COSTS JUDGE
Between :
REGINA | Claimant |
- and - | |
BRANDON | Defendant |
SOLICITORS: Sonn Macmillan Walker
Hearing date: 28 June 2010
Judgment
The appeal has been successful (in part) for the reasons set out below.
The appropriate additional payment, to which should be added the sum of £600 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.
REASONS FOR DECISION
This is an appeal by Sonn Macmillan Walker, a firm of solicitors in London, against the decision of the Legal Services Commission not to pay the full amount claimed for special preparation.
The solicitors were instructed to represent Robert Brandon who was charged with offences relating to the burglaries of a number of cannabis factories. The prosecution served evidence on 27 CD roms. Of those, 4 contained video footage or were corrupted in some way so that the contents could not be accessed. Along with their claim for a graduated fee the solicitors submitted a claim for special preparation on the basis that there were 13,500 pages on the 23 other CD roms.
Paragraph 1(2) of Part 1 to Schedule 2 of the Criminal Defence Service (Funding) Order 2007 provides:
For the purpose of this Schedule, the number of pages of prosecution evidence served on the court includes all –
witness statements;
documentary and pictorial exhibits;
records of interviews with the assisted person; and
records of 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.
The representation order was made on 16th February 2009. A claim for special preparation would therefore be governed by paragraph 15 of schedule 2 to the 2007 Funding Order before it was amended by the Criminal Defence Service (Funding) (Amendment) Order 2009:
Fees for special preparation
15.—(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a fee is payable under part 2, any or all of the prosecution evidence, as defined in paragraph 1(2), is served in electronic form only, and the appropriate officer considers it reasonable to make a payment in excess of the fee payable under Part 2.
Where this paragraph applies, a special preparation fee may be paid, in addition to the fee payable under Part 2.
The amount of the special preparation fee must be calculated from the number of hours which the appropriate officer considers reasonable to view the prosecution evidence, and using the rates specified in the table following paragraph 22.
A litigator claiming a special preparation fee must supply such information and documents as may be required by the appropriate officer in support of the claim.
In determining a claim under this paragraph, the appropriate officer must take into account all the relevant circumstances of the case.
The solicitors claimed 200 hours’ special preparation together with enhancement of 100 per cent under paragraph 24 of schedule 2 “to reflect the exceptional competence and despatch with which the work was conducted”. They submitted with their claim a schedule of the evidence contained on the CD roms.
By a letter dated 26th October 2010 the Commission asked the solicitors to provide evidence “from the prosecuting authority” of the number of pages on the discs and expressed the view that enhancement could not be claimed on special preparation.
The solicitors replied that the prosecution had provided no page count and that there was no need for one because special preparation is paid by hours spent rather than pages served. They maintained that enhancement could be paid under paragraph 24 on special preparation.
The solicitors submitted the CD roms to the Commission for inspection and on 29th November the Commission determined the claim at £3,446.39. That was based on there being 3,911 pages (the figure provided to the Commission by the Crown Prosecution Service) and allowing one minute per page at £45 per hour plus value added tax.
The solicitors lodged the CD roms on this appeal. Each is marked as an exhibit. I have opened some but not all of them. The contents appear largely to be either photographs or mobile ‘phone records. It is difficult to see how they could not fall within the class “documentary and pictorial exhibits”. On any view there are more than 3,911 pages. The 2 CD roms marked “Ex 174” and “Ex 175” alone contain nearly 8,000 pages of mobile ‘phone records.
At my request the solicitors lodged their file notes which record the time spent considering the CD roms. These record 8 hours, 7 hours or 6 hours spent per day – largely 8 hours. In total they record 199 hours – 20 x 8, 3 x 7, 2 x 6, 1 x 4, 1 x 2.
Insofar as they all record whole hours it is difficult to accept them as the product of accurate time recording.
As against that it seems to me that the approach of the Commission in allowing 1 minute per page is also inappropriate. Under the Funding Order the appropriate officer must consider the number of hours that would be reasonable to view the prosecution evidence. That cannot properly be the product of a time per page calculation.
In Re Eastwood (deceased) [1974] 3 All ER 603 at page 608 Russell LJ said that taxation was an area where:
“justice is in any event rough justice, in the sense of being compounded of much sensible approximation”.
I accept that the CD roms contain documents which largely fall within the definition of pages of prosecution evidence and that the number of pages suggested by the solicitors is more likely than the number suggested by the Crown Prosecution Service.
In my judgment it would have taken longer to consider these documents than the 65.18 hours allowed by the Commission. But I consider that the 200 hours claimed – the equivalent of 5 working weeks – is unreasonable. I would allow 100 hours as being reasonable. The appropriate rate in the table following paragraph 22 for a Grade B fee earner whose office is situated in the London area is £47.25, which gives £4,725 plus value added tax.
Paragraph 24 of Schedule 2 provides:
Allowing fees at more than the prescribed rates
—(1) Upon a determination the appropriate officer may, subject to the provisions of this paragraph, allow fees at more than the relevant prescribed rate specified in paragraph 22 for preparation, attendance at court where more than one representative is instructed, routine letters written and routine telephone calls, in respect of offences in Class A, B, C, D, G, I, J or K in the Table of Offences.
The appropriate officer may allow fees at more than the prescribed rate where it appears to him, taking into account all the relevant circumstances of the case, that—
the work was done with exceptional competence, skill or expertise;
the work was done with exceptional despatch; or
the case involved exceptional complexity or other exceptional circumstances.
Paragraph 3 of Schedule 1 applies to litigators in respect of proceedings in the Crown Court as it applies to advocates.
Where the appropriate officer considers that any item or class of work should be allowed at more than the prescribed rate, he must apply to that item or class of work a percentage enhancement in accordance with the following provisions of this paragraph.
In determining the percentage by which fees should be enhanced above the prescribed rate the appropriate officer must have regard to—
the degree of responsibility accepted by the fee earner;
the care, speed and economy with which the case was prepared; and
the novelty, weight and complexity of the case.
The percentage above the relevant prescribed rate by which fees for work may be enhanced must not exceed 100 per cent.
The appropriate officer may have regard to the generality of proceedings to which this Order applies in determining what is exceptional within the meaning of this paragraph.
Paragraph 22 provides:
Prescribed fee rates
Subject to paragraphs 23 and 24, for proceedings in the Crown Court to which paragraph 21 applies the appropriate officer must allow fees for work under paragraph 21(2) at the following prescribed rates—
There is then set out a table of hourly rates.
Paragraph 21 relates to fees for confiscation proceedings.
The Commission expressed the view in its letter dated 13th December 2010 that enhancement under paragraph 24 can only be paid in respect of fees for confiscation proceedings under paragraph 21. Sub-paragraph 21(5) provides that “the appropriate officer must allow fees in accordance with paragraphs 22-24”. Paragraph 15, on the other hand, makes no reference to enhancement or to paragraph 24. Sub-paragraph 15(3) merely requires the appropriate officer to calculate the fee for special preparation “using the rates specified in the table following paragraph 22”.
The solicitors argue that paragraph 24 provides a general power to allow fees at more than the rates prescribed in the table following paragraph 22. They submit that the power cannot be limited to confiscation proceedings because such proceedings cannot be said to be “in respect of offences in Class A, B, C, D, G, I, J or K in the Table of Offences”. Confiscation proceedings can only ever be ancillary and consequential to substantive criminal proceedings.
I must confess that I do not find the drafting of the provisions as clear as it could be. The wording of paragraph 24 of Schedule 2 to the 2007 Funding Order follows the wording of paragraph 4 of Part 1 to Schedule 2 to the 2001 Funding Order. The latter allowed for payment at enhanced rates in the days before graduated fees when solicitors were paid for time spent determined ex post facto.
Under the 2007 Funding Order only fees for special preparation and for confiscation proceedings are payable at the rates prescribed by the table following paragraph 22. All other work is payable either by graduated fees or by fixed fees (as set out in the table following paragraph 14). It is perhaps odd that paragraph 15, which provides for fees for special preparation, is in Part 3 of Schedule 2 which is headed “Fixed Fees”. Paragraphs 21 to 24 are in Part 4 which is headed “Miscellaneous”.
Sub-paragraph 24(1) begins:
Upon a determination the appropriate officer may … allow fees at more than the relevant prescribed rate …
It seems to me that the “determination” must be a determination of the fees of confiscation proceedings under paragraph 21. First paragraph 21 (by sub-paragraph 5) expressly refers to paragraphs 22 to 24. Those paragraphs, with paragraph 21, provide the scheme for the ex post facto determination of fees for confiscation proceedings. Second, paragraph 22, which applies only to confiscation proceedings, again specifically refers to paragraphs 23 and 24:
Subject to paragraphs 23 and 24, for proceedings in the Crown Court to which paragraph 21 applies the appropriate officer must allow fees for work under paragraph 21(2) at the following prescribed rates …
Paragraph 15 makes no reference to paragraphs 23 and 24. It merely borrows the rates set out in the table following paragraph 22 for the purposes of the calculation required by sub-paragraph 15(3). There is nothing to suggest that it is intended to fall into the scheme for the determination of fees in confiscation proceedings. Had the draftsman intended that the appropriate officer making the calculation under sub-paragraph 15(3) should have the powers contained in paragraphs 23 and 24, that could easily have been stated.
I agree with the solicitors that if it is intended that paragraph 24 applies only to confiscation proceedings it is odd that paragraph 24(1) limits the power to allow enhancement to cases which fall within certain offence classes. I suspect that the reason for that is that the paragraph has simply been lifted from the 2001 Funding Order where it made provision for enhancement in the more serious cases. It is also odd that if paragraph 24 is intended to apply to fees for special preparation that it refers to enhancement on “attendance at court … routine letters written and routine telephone calls” when none of these form the basis of a calculation for special preparation.
In my judgment enhanced rates cannot be paid for special preparation and the Commission was right to refuse them.
However if my interpretation of the Funding Order is wrong, I would not in any event see this as a case where enhanced rates would be justified. There is nothing before me to suggest that the work was done with exceptional competence or despatch.