R v Dylan Whiting

GT Stewart Solicitors (‘the Appellants’) appeal against the decision of the Determining Officer at the Legal Aid Agency (‘the Respondent’) in respect of a claim submitted under the Advocate’s Graduated Fees Scheme (‘AGFS’). The Appellants challenge the Respondent’s decision to apply an out of time reduction of 20% for late submission of the claim.

The Appellants represented Mr Dylan Whiting (‘the Defendant’) at Isleworth Crown Court. The Defendant appealed against a sentence of 26 weeks’ imprisonment imposed by the Magistrates’ Court. His appeal was dismissed on 18^th September 2020, when the case concluded.

The AGFS claim was submitted 26 months later on 29^th November 2022. Payment was made by the Respondent, but a late submissions penalty of 20% was applied, a deduction upheld on redetermination.

The Criminal Legal Aid (Remuneration) Regulations 2013 (‘the 2013 Regulations’), as amended in 2018, apply.

Regulation 4 requires that claims be submitted “within three months of the conclusion of the proceedings”.

Regulation 31 then provides as follows:

The Crown Court Guidance then sets out a ‘sliding scale’ of % deductions based on the degree of late submission:

During (and after) the Covid pandemic period, the Respondent applied an appropriate variation to this sliding scale, so that no penalty was applied to claims submitted up to 6 months late, a 5% penalty was applied to claims submitted between 6-12 months late, with the standard +20% penalty applied to claims submitted over 12 months out of time.

The Respondent’s case is set out in Written Reasons dated 3^rd January 2023. No appearance was made at the appeal hearing on 1^st September 2023. The Appellants’ case is set out in Grounds of Appeal appended to the Notice of Appeal. Ms Krudy, solicitor, attended and made submissions at the hearing on 1^st September 2023.

The Respondent, in summary, found that the Appellants demonstrated a ‘good reason’ for late submission, pursuant to reg. 31(1), applicable to 19^th March 2021. No reason was particularised, but the context, evidently, was the Appellants’ difficulties during the Covid pandemic. Further, the Determining Officer then found that the Appellants had demonstrated ‘exceptional circumstances’, pursuant to reg. 31(2), subject to a post-12-month delay deduction of 20%. Again, aside from referring to the Legal Aid Agency’s general policy, no reasoning was particularised.

The Appellants, in summary, submit that GT Stewart operated efficiently and reasonably during the exceptional disruption caused by the Covid pandemic. The Appellants are a large, regional firm, conducting high volume (but often comparatively low value) business. Its annual turnover for 2021/22 for police station/Magistrates’ Courts business was £1.398 million, with each claim valued at £180 to (at the very highest) about £2,000. The firm’s GFS turnover over the same period was £1.8 million. No figures are available for the AGFS turnover, but the value of business was also considerable. The Appellants, in other words, incur the burden of submitting thousands of claims annually, a considerable administrative burden during the best of times. Like most businesses, the Appellants struggled understandably during the Covid pandemic, to the extent that they are still, even now, endeavouring to catch up. Ms Krudy submitted – and this is not gainsaid by anything advanced by the Respondent – that the Appellants are recognised as an efficient, well-run firm, who maintain an administration respected by the LAA. Ideally, the Appellants submit that this AGFS claim should be allowed without deduction. The Appellants concede, however, that a late submission penalty may be applicable, but aver that it should properly be 5% and not the 20% applied.

The Respondents, in general terms, have applied an appropriate system fairly. The DO concluded properly that the Appellants had demonstrated a ‘good reason’ (31(1)) followed by ‘exceptional circumstances’ (31(2)). But the DO erred, in my conclusion, in relation to the period applicable to the ‘good reason’. No specific reasoning was articulated for stopping the ‘“good reason’ period at 19^th March 2021. The ‘third lockdown’ imposed on or about 4^th January 2021, the culmination of a continuous series of restrictions starting on 20^th March 2020, was relaxed progressively until sometime in July 2021, when, for practical purposes, the restrictions ceased. Any business of any size, however, would likely experience some form of ongoing disadvantage, at least for a reasonable period. The Appellants, I find, are a large, properly administered business, conducting high volume legal aid business, with consequently significant administrative burdens. Realistically, the post-Covid deficit would have been reasonably ongoing for some time after the formal Covid restrictions expired. Dong the best I can, on the facts of this case and applying necessarily a relatively broad-brush, I find that the ‘good reason’ extension should apply to the end of 2021, meaning that the ‘exceptional circumstances’ delay period would not start until the beginning of 2022. Insofar as this AGFS claim was submitted at the end of November 2022, the relevant period of delay falls within the 9-12 months bracket, meaning that, pursuant to the Respondent’s reasonable policy, a 5% penalty should be applied.

I accordingly allow this appeal and direct that the Appellants’ AGFS claim should be allowed subject to a late submission penalty of 5%.

The Appellants’ appeal succeeded substantially and so I award costs of £200 (+ any VAT payable), along with the payment of the £100 paid on appeal.