England and Wales High Court (Senior Courts Costs Office) Decisions

		CROWN COURT AT LIVERPOOL
		Dated: 8th March 2010

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 £100 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.

REASONS FOR DECISION
1. This is an appeal by W H Darbyshire & Son, a firm of solicitors in Blackpool, against the calculation of a litigator graduated fee by the Legal Services Commission.
2. The solicitors were instructed to represent Lampros Gkampos who was charged with assisting illegal entry. A plea and case management hearing was held on 8^th April 2009. Gkampos pleaded not guilty and the case was listed for trial in August 2009 with a time estimate of 5-6 days.
3. On 2^nd June 2009, on an application by the Crown Prosecution Service to extend the custody time limit, Gkampos changed his plea to guilty.
4. The solicitors submitted their claim for a graduated fee to be calculated on the basis that this was a cracked trial with 333 pages of prosecution evidence. However the Commission paid a fee calculated on the basis that this was a guilty plea with 201 pages of prosecution evidence – that being the information supplied by the Crown Court.
5. Paragraph 1 of Schedule 2 to the Criminal Defence Service (Funding) Order 2007 provides these definitions:

"cracked trial" means a case on indictment in which—

(a) a plea and case management hearing takes place and—

(i) the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence; and

(ii) either—

(aa) in respect of one or more counts to which the assisted person pleaded guilty, he did not so plead at the plea and case management hearing; or

(bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the plea and case management hearing, declare an intention of not proceeding with them; or

(b) the case is listed for trial without a plea and case management hearing taking place;

"guilty plea" means a case on indictment which—

(a) is disposed of without a trial because the assisted person pleaded guilty to one or more counts; and

(b) is not a cracked trial.

It is clear that in the present case a plea and case management hearing took place (the solicitors have provided a copy of the directions made by HH Judge Lloyd) and the defendant did not plead guilty until after that hearing. This case clearly fell within the definition of a cracked trial. In fact that may not be in issue for I note that somebody has put a tick through the words "should be cracked trial" on the form LF2; although the letter from the Commission dated 28^th October 2009 indicated that no additional payment would be made.

Paragraph 1(2) of Part 1 to Schedule 2 of the 2007 Funding Order provides:

For the purpose of this Schedule, the number of pages of prosecution evidence served on the court includes all –

(a) witness statements;

(b) documentary and pictorial exhibits;

(c) records of interviews with the assisted person; and

(d) 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 solicitors lodged their papers on the appeal. It is clear that there were 70 pages of statements and 134 pages of exhibits.

However the solicitors maintain that "further material" supplied by the prosecution should be included in the page count, namely 20 pages of Greek antecedents and 123 pages relating to a prosecution in Canada. While these documents were undoubtedly served by the prosecution, they are not witness statements, exhibits or records of interviews and do not fall within the definition in sub-paragraph 1(2).

That counsel was apparently paid on the basis that there were 333 pages of prosecution evidence, the number of pages agreed at court, cannot I am afraid affect my decision.

I am satisfied that there are 204 pages which fall within the definition of pages of prosecution evidence and that this was a cracked trial and the graduated fee payable should be recalculated accordingly.

The Senior Courts Costs Office, Clifford's Inn, Fetter Lane, London, EC4A 1DQ. DX 44454 Strand, Telephone No: 020 7947 6468, Fax No: 020 7947 6247. When corresponding with the court, please address letters to the Criminal Clerk and quote the SCCO number.