Neutral Citation Number: [2002] EWHC 257 Admin
Case No: CO/568/01
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2

Date: Monday, 14th January 2002
B e f o r e:

LORD JUSTICE AULD

and

MR JUSTICE GAGE

- - - - - - -

THE QUEEN ON THE APPLICATION OF HALE

-v-

NORTH SEFTON JUSTICES

- - - - - -
Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - -

MR MICHAEL DAVIES (instructed by Coyne Learmonth, 135 Liverpool Road, Great Crosby, Liverpool, L23 5TE) appeared on behalf of the Claimant
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED

- - - - - - -
J U D G M E N T

1.	LORD JUSTICE AULD: This is a claim by Philip Hale, who was acquitted by the North Sefton Justices of a charge of common assault and battery, for judicial review of the Justices' refusal to review and alter the taxation of his costs under a defendant's costs order made pursuant to section 16 of the Prosecution of Offences Act 1985. The issue for the court is whether, as required by section 16(6), the payment ordered by the Justices is of such amount as the court could reasonably consider to be sufficient to compensate him for any expenses properly incurred by him in the proceedings.
2.	The incident giving rise to the charge against the claimant took place on 17th February 2000. The prosecution allegation was that just outside a superstore he punched a man to the ground, kicked him while he was on the ground, and then went to kick him again but was prevented from doing so by a third man. For an offence of common assault and battery it was fairly serious, if proved, and could have resulted in a short period of imprisonment or a significant fine.
3.	On 20th February 2000, three days later, the police arrested the claimant and interviewed him about the matter. They then released him on bail while they made further inquiries. On 6th April 2000 the claimant, while still on bail but not yet charged, consulted Mr Anthony Learmonth, a solicitor and member of a two-partner firm, Coyne Learmonth, in Liverpool. Both Mr Coyne and Mr Learmonth were solicitors of some seniority. The two partners employed no other solicitors. The claimant consulted and was shortly to instruct Mr Learmonth to act for him on a privately paid basis, namely at an hourly rate of £145, exclusive of value added tax.
4.	On 11th April 2000, only a few days after that consultation, the police charged the claimant with the offence, whereupon he, with the professional assistance of Mr Learmonth, prepared to contest the charge. On 23rd June 2000 the matter came before the North Sefton Justices sitting at Southport when, as I have indicated, they acquitted him and made a defendant's costs order in his favour. On 27th June 2000 the claimant saw Mr Learmonth for the last time in connection with the proceedings, namely to seek advice as to the destruction of his finger prints and photographs held by the police, a matter on which Mr Learmonth would have had to make contact with the police.
5.	Mr Learmonth then submitted his claim for costs under regulation 7 of the Costs in Criminal Cases (General) Regulations 1986. He based it on his agreed rate for the claimant of £145 an hour, though claiming £140 an hour and travelling expenses at £0.66.6p per mile. This produced a total claim of £4,516.25 for fees and £80 for travelling expenses, all exclusive of value added tax.
6.	The Justices' Clerk replied on their behalf, rejecting the basis of calculation and the amount of the claim, determining the proper amount payable as £2,187.74, namely less than half that claimed by Mr Learmonth. Mr Learmonth then sought a redetermination under regulation 9 of the 1986 Regulations, but the Justices' Clerk replied, indicating that the Justices adhered to their original determination.
7.	The exchange of correspondence between Mr Learmonth and the Justices' Clerk, and affidavits filed on both sides in this proceeding, indicate three main issues for decision on the general question under section 16 of the 1985 Act, whether the payment authorised by the Justices is:
“...reasonably sufficient to compensate [the claimant] for any expenses properly incurred by him in the proceedings.” 
8.	That question has been repeated and fleshed out in regulation 7 of the 1986 Regulations in accordance with which section 16(9)(b) requires the determination to be made. Regulation 7 reads:
“(1) The appropriate authority shall consider the claim, any further particulars, information or documents submitted by the applicant under regulation 6 and shall allow such costs in respect of-
(a) such work as appears to it to have been actually and reasonably done; and
(b) such disbursements as appears to it to have been actually and reasonably incurred,
as it considers reasonably sufficient to compensate the applicant for any expenses properly incurred by him in the proceedings.
(2) In determining costs under paragraph (1) the appropriate authority shall take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.
(3) When determining costs for the purpose of this regulation, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the appropriate authority may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved against the applicant.” 
9.	The first main issue is whether it was reasonable for the claimant to instruct a solicitor of Mr Learmonth's seniority, that is to say, so far as material in this case, of over four years' standing, and to commit himself to an hourly rate of £140 odd an hour, or whether, as the Justices' Clerk maintained, the determination should be based on a broad average direct cost rate of £80 an hour with a 50 per cent mark-up where appropriate for advocacy, preparation and attendance.
10.	Mr Michael Davies, for the claimant, who has argued this case with great ability, maintained that it was reasonable for the claimant to instruct Mr Learmonth at an hourly rate appropriate to his seniority for two reasons. First, the alleged offence, though at the bottom end of the legal scale of assaults, was serious on its facts and carried with it a substantial risk of imprisonment if proved. Second, the claimant was an established client of this two-partner family firm, Mr Learmonth having acted for him in a previous criminal matter. The rate of £145 an hour was, Mr Davies submitted, a reasonable hourly rate having regard, for example, to the current rates for taxation of standard costs of senior solicitors in the Liverpool and other County Courts, and in other local Magistrates' Courts.
11.	The Justices, through their Clerk, maintained that there was no need for the claimant to have instructed a solicitor of Mr Learmonth's seniority. This was an offence of common assault, triable only summarily, on which the issues for determination were purely factual. A more junior solicitor could have dealt with it. Indeed, some of the work, for example the taking of witness statements, could have been done by a trainee solicitor, the Clerk maintained. 
12.	To the objection of Mr Learmonth in one of his affidavits in the proceedings that his firm had no junior or trainee solicitor available for such delegation, the Justices relied on Notes for Guidance issued by the Supreme Court Taxing Office in 1995 for Crown Court Taxing Officers, in particular paragraph 3.8. They maintained that the County Court rate of £140 an hour, relied upon by the claimant, was not applicable to proceedings in Magistrates' Courts, for which, unlike the County Court and High Court, there were no set rates of costs in respect of privately paid cases. For those reasons, the Justices, through their Clerk, adhered to the “broad average direct cost rate of £80 an hour with 50 per cent mark-up where appropriate”, to which I have referred.
13.	They derived this method of calculation from paragraph 3.13 in the 1995 Notes for Guidance and from a document entitled “Determining Officers Notes for Guidance”, intended to encourage consistency in the taxation of costs awarded from central funds in the Crown Court and in Magistrates' Courts. Those sources indicated that for the purpose of assessment a solicitor's remuneration should be regarded as consisting of two factors, (a) and (b): (a) was the average hourly expense rate prevailing in the area for all work properly undertaken; (b) provided for profit and supervision and was likely to vary according to the professional skill and responsibility in the work involved.
14.	As to the rate of £80 an hour and 50 per cent mark-up, Miss Elizabeth Hamley, a court clerk employed by the North Sefton Magistrates' Court, has sworn an affidavit that they are derived from rates claimed by other solicitors in the area in quantifying their claims in respect of defendants' costs orders.
15.	Mr Davies has submitted, in reliance on further affidavit evidence of Mr Learmonth, that since about April 1999, when the Civil Procedure Rules were introduced, solicitors have generally moved, in criminal as well as civil work, away from the system of broad average direct cost plus mark-up mode of billing their work to a flat hourly rate applicable to all types of work. The change came about, it seems, to secure the necessary simplicity required for summary assessment of costs under the new Civil Procedure Rules' regime, and for the benefit of lay clients who had found the old system confusing.
16.	Mr Davies accepted, as did Mr Learmonth in his affidavit, in response to a countering argument from Miss Hamley in one of her affidavits, that at the time of the proceedings solicitors charging practices may have been in a state of transition. Some may have still used the system of broad average direct costs and 50 per cent mark-up and others had moved to a flat hourly rate. However, Mr Davies maintained that just because some solicitors adopted one approach and others, including Mr Learmonth, took another, it does not follow that it was unreasonable in the circumstances for the claimant to retain Mr Learmonth at an hourly rate of £145. As to the reasonableness of £140 as an hourly flat rate for taxation for a solicitor of Mr Learmonth's standing, Mr Davies relied, as I have already indicated, on a number of comparables drawn from Mr Learmonth's inquiries of a number of local County and Magistrates' Courts.
17.	I return to the test in section 16(6) of the 1985 Act governing a court's determination of the amount of costs incurred by a defendant for payment out of central funds. It requires the court to make payments:
“...of such amount as [it] considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.” 
18.	As I have said, there is some elaboration of this in regulation 7 of the 1986 Regulations, including regulation 7(2), requiring the court to: 
“...take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.” 
19.	The question is, therefore, whether the claimant was reasonable in the circumstances in instructing Mr Learmonth to act for him and at the hourly rate of £145 or thereabouts, not whether he could have instructed someone else who would have charged him on a different basis and at a lower overall rate. This is clear from the judgment of this court in R v Dudley Magistrates' Court ex parte Power City Stores Limited and Another [1990] 154 JP 654, per Woolf LJ at 659F to 660B. That was a case in which, in summary proceedings, the defendant instructed leading counsel whose fees were disallowed by the Justices' Clerk. The basis for the disallowance was that the defendant could and should have instructed junior counsel or a solicitor to deal with the matter, not leading counsel. The court held that, in considering whether defence expenses were properly incurred in instructing leading counsel in the proceedings, the appropriate question was whether the defendant acted reasonably in instructing the counsel whom he did, and not whether more junior counsel or a solicitor could have adequately dealt with the case. The court added that, although junior counsel or a senior solicitor could have adequately dealt with the matter, it was nonetheless reasonable for the defendant to employ leading counsel.
20.	It is important that the statutory test that I have set out and as the court so interpreted it in that case should not be mistaken. It is not, as the Justices' Clerk here has put it, whether:
“...a lawyer of less experience than a senior solicitor would have been 'reasonably sufficient' to conduct the case?” 
21.	As Mr Davies has observed, that is to apply the words “reasonable sufficiency” to the wrong issue, i.e. to the quality of representation instructed rather than to the amount of compensation for expenses properly incurred - the statutory test. As he also observed, the test applied by the Justices' Clerk was, in effect, whether it was improper for the claimant to instruct a solicitor of Mr Learmonth's seniority - not the statutory test.
22.	If, as I would find, it was reasonable for the claimant in the circumstances of this case to instruct Mr Learmonth, it is necessary to consider whether it was reasonable to pay him on the then emerging general basis of a flat hourly rate instead of the old and diminishing practice of a broad average cost plus mark-up.
23.	In my view, the information before the court, to which I have referred, shows that it was at least reasonable in the transitional period of 2000 for the claimant to incur costs in the proceedings at a flat hourly rate and to do so at the claimed hourly rate of £140. Such a rate was not untypical of other comparable claims in County Courts and Magistrates' Courts at the time. This can be seen from the figures set out in Blackstone's Civil Practice (2001 Edition) at pages 738 to 740, including a number in the Liverpool area. Although these are County Court figures, the level of hourly rates allowed is of a piece with those allowed by a number of Magistrates' Courts, as evidenced by Mr Learmonth in his second affidavit, including Liverpool and South Sefton Magistrates' Courts.
24.	For those reasons, on the first issue, I would quash the determination made by the Justices as to the basis upon which Mr Learmonth was to be paid and return the matter to them with an order of mandamus, directing them to substitute for the amount determined by them the amount claimed by Mr Learmonth of £140 an hour.
25.	The second main issue is whether Mr Learmonth's claims for attendances on the claimant prior to charge and after acquittal are, in the words of section 16(6), for expenses incurred by the claimant “in the proceedings”. As to the attendance on the claimant prior to the charge, that is to say on 6th April 2000, for a period of 30 minutes, Mr Davies, in his submission, adopted Mr Learmonth's explanation given in his first affidavit, which reads:
“...he attended my office, having already been interviewed by the Police in relation to the matter, who had then granted him bail to return to the Police Station once they made further enquiries. It is submitted that he was entitled to receive advice in relation to the possible outcome when surrendering to his bail.” 
26.	Mr Davies added that if Mr Learmonth had been instructed to attend and advise the claimant at the initial interview (which he was not) it could not have been reasonably disallowed as part of his bill in the proceedings. Here the attendance followed such an interview and was at a stage when the police investigations were nearly complete and the claimant had shortly to surrender to his bail. No doubt, I would add, matters passed between the claimant and Mr Learmonth on that occasion by way of instructions which would have had to be given at a later stage after charge.
27.	As to the attendance after acquittal, this was, according to Mr Learmonth's affidavit, to enable the claimant to seek advice in relation to the destruction of his finger prints and photographs, advice to which he was entitled. Mr Davies submitted that this was a matter so closely interrelated with the proceedings as to be an expense which he can properly recover. He described it as ancillary to the proceedings and as having flowed from his acquittal.
28.	In my view, the first of those claims for attendance prior to the charge, for the reasons given, would, adopting a sensible and realistic interpretation of the words “in the proceedings”, clearly be encompassed by them. Instructions were given at a time when charge was imminent and the bail on which the claimant had been placed was about to expire. It seems to me that on a sensible approach it could not reasonably be said that the advice sought and given at that initial attendance was not “in the proceedings” simply because the charge had not yet been preferred.
29.	I have greater difficulty with the attendance after acquittal for the purpose of seeking advice on destruction of finger prints and photographs. I accept that it was advice to which the claimant was entitled and which flowed from the acquittal, the terminating point of the proceedings. Nevertheless, it was a matter which fell to be dealt with as between the claimant, either on his own or through a solicitor, and the police. It seems to me it cannot be said as a matter of law that the Justices' Clerk was wrong in taking the view that such advice after acquittal, terminating the proceedings, was advice “in the proceedings”.
30.	Accordingly, I would quash the Justices' determination in relation to the attendance prior to charge and grant mandamus for the making of an award in the amount claimed by Mr Learmonth. That follows from the view I take as to the reasonableness of his claim in relation to the hourly charging rate. But I would refuse any such order or orders in relation to the amount claimed in respect of attendance after committal.
31.	That leaves the third issue, one of car mileage. The amount claimed by Mr Learmonth was at the rate of £0.66p per hour as against that allowed by the Justices' Clerk of £0.36p per hour. The total amount of the claim at the higher rate is £80. There is no issue as to actual mileage in respect of which Mr Learmonth was making claim. The issue is as to the reasonableness of the amount claimed.
32.	Mr Davies made the following points in support of his submission that this was a matter of law on which the court should rule on this application. He pointed out that the rate relied upon by the Justices' Clerk of £0.36p was the legal aid rate, which he asserted, in reliance on a similar assertion of Mr Learmonth, was approximately one-third of the rate applicable to privately paid cases. On that premise, he submitted, that the rate claimed here cannot be said to be unreasonable since it is less than double the legal aid rate in force since 1986, a rate in itself of some antiquity.
33.	Mr Davies accepted that it is the current practice for solicitors to claim that old rate in legal aid cases. He said that it is legally wrong for the Justices' Clerk to apply a legal aid rate to privately paid solicitors' work. The difficulty in Mr Davies' argument, which he acknowledged, was that there was no information before the Justices' Clerk or this court that the rate claimed by Mr Learmonth was one of general application in privately paid cases at the time. That is, there was no evidence that it was the going rate in privately paid cases at the time. That being so, it is impossible for this court to make the comparison and rule that, in claiming the rate he did, Mr Learmonth was reasonably claiming an amount appropriate to privately paid cases at the time, or that the Justices' Clerk erred in law in applying the lesser rate applicable to legal aid claims at the time. 
34.	I would refuse the application on this third issue.
MR JUSTICE GAGE: I agree, and I agree with the orders proposed by my Lord. I should just point out that, as I understand it, the rate agreed between Mr Learmonth and his client was £145 an hour, but for the reasons which my Lord has set out, in my judgment an error of law is established in the rate set by the clerk.
For the reasons Auld LJ has set out, I agree that the rate should be set at £140 per hour.
MR DAVIES: One final matter, my Lords, I would ask for the claimant's costs from central funds?
LORD JUSTICE AULD: We are quashing the order and making an order of mandamus. You are asking this court to make the order for payment, are you?
MR DAVIES: I was asking for it in relation to the claimant's costs of being represented today.
LORD JUSTICE AULD: I am sorry, costs. I misheard you, I am so sorry. You are seeking costs out of central funds?
MR DAVIES: For today, my Lord.
LORD JUSTICE AULD: Yes, you are entitled to that, no doubt at the rate indicated by the court. We are most grateful to you for your assistance.
MR DAVIES: Thank you.