Lord Chancellor v Purnell & Anor

This is an appeal by the Lord Chancellor (“The Appellant”) against a decision of Costs Judge Campbell of the 28 May 2009, the power to initiate such an appeal being provided by paragraph 22(5) Criminal Defence Service (Funding) Order 2001. The Respondents are leading counsel, Paul Purnell QC, and junior barrister, Martin McCarthy. There was a hearing before me on 20 November 2009 at which there were submissions by Mr Sachdeva on behalf of the Appellant and by Mr Purnell QC on behalf of himself and Mr McCarthy. To receive these submissions, I sat with two assessors, Costs Judge Simons and Mr Anthony Engel. Judgment was reserved and it follows herein. No point has been taken as to whether the Appellant needed permission to appeal.

The essential events are as follows:

It is common ground that because the Respondents were acting pursuant to a Representation Order of 2006, their entitlement to a cracked trial fee is governed by the Criminal Defence Service (Funding) Order 2001 and not the successor 2007 Order. By Schedule 2, part 3, paragraph 9 it is provided:

“(3)

A case on indictment in which a … plea and case management hearing takes place is a cracked trial if it fulfils the following conditions:

(a)

the matter did not proceed to trial (whether by pleas of guilty or for other reasons) or the prosecution offered no evidence, and …

(b)

(ii) in respect of one or more counts which were not proceeded with, the prosecution did not, before or at the … plea and case management hearing declare an intention of not proceeding with them.

(4)

A case on indictment in which no … plea and case management hearing takes place is a cracked trial if it was listed for trial but the case was disposed of without a trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offered no evidence.”

It is further common ground that whereas there is no other law that is binding upon me, I may prove to be assisted by reference to certain reported decisions and by reference to the Graduated Fee Scheme Guidance as published by, or on behalf of, the Appellant. I take each in turn.

As to reported decisions, I was referred by Mr Sachdeva to three such: R v Mohammed, 30 March 2000; R v Pelepenko, 30 May 2002; and Lord Chancellor v Frieze (2007) EWHC 1490 (QB). I have read the respective judgments with care and cite as follows:

Turning finally to the Graduated Fee Scheme Guidance, I remind myself that such is no more and no less than “Guidance”: it is not a source of law and at best can do no more than illuminate the ongoing application of paragraph 9 to recurring situations. That said, whereas the relevant October 2005 Guidance at B18 possibly contains pertinent guidance, the successor 2008 Guidance does include very specific and clearly pertinent material:

“B20(2)(4) “Where there is a change of plea at or before the start of the second trial (or where the prosecution do not proceed on re-trial) and such change of plea occurs within one calendar month of the conclusion of the first trial, the advocate is paid a cracked trial fee for the second trial, but reduced by 40% (subject to F10A).”

Turning to F10A, the test reads:

“Where a trial is aborted, or a jury is unable to reach a verdict, with the prosecution later offering no evidence – a cracked trial fee should not be paid for the second or subsequent intended trial unless the case was again considered ready for trial by being given a fixture listing or placed in a warned list. Adjourning the proceedings to allow the prosecution time to decide whether or not to proceed further – with the case subsequently being listed for mention at which the prosecution offer no evidence – would not qualify for a cracked trial fee.”

The Determining Officer, Pamela Sanderson, opined that the Respondents, having conducted one trial, would have no need to carry out preparation for a re-trial “until a fixture date had been confirmed with a realistic time estimate”. She considered that the “pencilling in” of a trial date had no more significance than, as it were, getting a foot in the door so as to ensure that the matter did not go off to 2008.

For his part, Costs Judge Campbell, having taken into account the conduct of the Respondents up to and including the letter of 15 May and the full circumstances as known to him, thought

“There was no question of the matter having been adjourned after trial to allow the Prosecution time to decide whether it intended to proceed further. It is plain from the Court papers and from the submission of Mr McCarthy that as of 30 April 2007 the Crown intended that there would be a re-trial starting on 8 October 2007 listed for 6 to 8 weeks”.

My judgment inevitably owes much to the respective submissions, oral and written. Without intending discourtesy I do not propose to add to the length of this judgment by rehearsing such: my indebtedness will appear as I give my ruling.

In my judgment this Appeal falls to be dismissed. There are several reasons; I deal with each in turn.

First, this Appeal as brought pursuant to paragraph 22(5) of the 2001 Order is expressly subject to CPR 52, see paragraph 22(7). Turning to CPR 52.11, the Appeal is “limited to a review of the decision of the lower Court” and for present purposes can only be allowed if I am satisfied that the lower Court was “wrong”. As to this, I have reviewed the careful judgment of Costs Judge Campbell, noting his résumé of the law and his recital of the facts. I have particularly noted that more factual material was available to him than was before the Determining Officer. On this basis of law and fact he had, in the exercise of reasonable discretion, to make a decision. He did so. That decision may or may not have had universal support from his brother Cost Judges – but that is not the point. What is in point is that I cannot condemn his decision as so outwith the ambit dictated by law and as fact as to be “wrong”.

Let me now turn from a review of the decision of the lower Court, to my approach, were this to be a re-hearing. First, the law. The starting point has to be Schedule 2, Part 3, paragraph 9 – indeed, arguably this is the only source of binding law in a field dependent upon provisions spawned by, and ultimately stemming from, the Access to Justice Act 1999. Focussing upon the situation that arose at and after 30 April, there is a nice but, as I think, ultimately immaterial point as to whether such was covered by 9(3) or 9(4). Thus, was there up to the 25 May 2007 one trial governed by the PCMH of the 26 October 2006? If so, 9(3) is pertinent. Alternatively, was there a series of trials, each necessitated by the discharge of the jury with only the first preceded by a PCMH? If so, 9(4) is pertinent. Either way there is definition of a ‘cracked trial’, given a sustained plea of ‘not guilty’, a listing for trial and an offer of no evidence.

For the Appellant, Mr Sachdeva, submitted that guided by the ‘common law’, that is, the three decisions summarised in paragraph 5 above, I should find that the facts were such as to take the post 30 April situation out of the ambit of paragraph 9(3) and (4). For my part, I respect these decisions and the laudable desire to fashion good practice upon them but there is, I fear, a limit to their weight at least for present purposes. Thus, R v Mohammed and Lord Chancellor v Frieze are so factually different as not to assist. As to R v Pelepenko, there is a superficial factual similarity and I note with interest that Costs Judge Rogers did think that, on a literal reading, paragraph 9(3) justified a ‘cracked trial’ finding – plainly, thus far, he and I are at one. I turn to his actual decision to refuse the finding of ‘cracked trial’ because as at the Order for re-listing there was no reason to anticipate, let alone prepare for, a further trial. As to this attempt to achieve a result consonant with the apparent merits, I am sympathetic but I am doubtful as to whether he had the power effectively to add a gloss to the terms of paragraph 9(3). If through delegated legislation the terms of 9(3) are fixed then there is the legal definition of a cracked trial – if the results are on occasion unpalatable, giving rise to excessive public expenditure on Counsel’s fees, the answer lies in fresh legislation, alternatively, in adjustments as to the calculation of a cracked trial fee. Be that as it may, in the instant situation the Respondents had, as I think, every reason to expect and prepare for a re-trial. The case was very serious and so far had featured a finding by at least three jurors that manslaughter had been proved against ‘A’ to the criminal standard. I am in no way surprised that the Respondents cleared diaries for a trial starting on the 6 Octoberand gave early attention to its conduct and the sustained impact upon their client. This factually is not an R v Pelepenko situation.

In reaching the views expressed in the preceding paragraph, I have taken comfort from the appearance in the 2008 Guidance of paragraph B 20(2)(4) as cited in paragraph 6 herein. Why was it deemed necessary to introduce this very specific redrafted guidance? At the hearing my question had no specific response but I infer that the instant situation had been recurring so that paragraphs 9(3) and (4) were engaged in circumstances that led to arguably excessive fees. Being rightly unable to gainsay the binding impact of paragraph 9(3) and (4), the guidance now focuses on the quantum of the resultant cracked trial fee. It is unfortunate that this Guidance did not in the event directly impinge upon the Respondents’ claims – had it done so the respective appeals would have been obviated. What continues to surprise me is this Appeal – and the force with which it has been presented – given the actual and potential impact of this new guidance. I write ‘new’ for it is not entirely clear what paragraph B18 of the 2005 Guidance covered.

I dismiss the Appeal. The Respondents seek payment of costs and have submitted fee notes. My Assessor, Cost Judge Simons, has given consideration to the quantum of the claims and has given me advice on the point which I readily accept. In the result, I order payment of the Respondents’ costs of this Appeal: as to Mr Purnell QC, £2200 + VAT; as to Mr McCarthy, £1000 + VAT-.

I must express my appreciation of the contributions respectively made by my Assessors, emphasising that this judgment is, as it should be, my own.

This judgment will be handed down. I look forward to making the resultant Order, presumably consensually drafted.