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

IN THE SENIOR COURTS COSTS OFFICE

		5th January 2010

REASONS FOR DECISION
1. This appeal by David Charnley & Co concerns the graduated fee payable in respect of Pages of Prosecution Evidence ("PPE") when a case is transferred from one firm of solicitors to another when the costs of the defence are being publicly funded in accordance with the Criminal Defence Service Funding Order 2007. The issue which arises is whether the original firm, here the Appellant, should be paid for 5,000 pages of PPE, being the firm's estimate of the number of pages that would have been served by the date the case concluded, or 1547 pages on the basis that "this is the volume served to them by the prosecuting authority whilst they acted for the client" – see the Legal Services Commission's written reasons dated 10 October 2009.
2. The background is that David Charnley & Co acted for the Defendant John Greenwood in the Chelmsford (now Ipswich) Crown Court. On 14 March 2009, legal aid for representation had been authorised appointing the Appellant firm as "the litigator" representing Mr Greenwood in respect of offences relating to conspiracy to supply a class B controlled drug, and offences concerning the proceeds of crime, including money laundering. Five days later the order had been amended transferring representation to Bankside Law Ltd, and on 29 May 2009 the Appellant lodged its litigator fee claim form in LF1 to the Legal Service's Commission for payment.
3. Form LF1 said this:

"Section Five – Claim Details

Final trial date not yet concluded.

Trial length in days	Not taken place yet.
Number of pages of PPE	5,000 c full figure not known as case not concluded.

Section Six – Total Claim

Litigator fee claimed £5,284.72

VAT £792.71

Total £6,077.43"

4. The claim was assessed on 5 August 2009. The LSC allowed a total litigator final fee of £2,603.08 including VAT.
5. Dissatisfied, the Appellant lodged Form LF2 to which the firm annexed a letter dated 17 August 2009 which said this:

"We wish to appeal your decision in respect of the LF2 claimed submitted … Our interpretation of the relevant Regulations and LGFSG (Litigator Graduated Fee Scheme Guidance) is that at the point of transfer the firm is paid a percentage of the final case fee. The final case fee is the fee based on the total number of pages served at the conclusion of the case not at the time of transfer. The LGFS is drafted on the basis that there is one case fee and it is percentages of this that are paid, not as the LSC have interpreted the guidance. If the LSC are correct in their interpretation this would lead to two case fees (or more if there are subsequent transfers with different numbers of PPE served) …

It is our submission … that our claim is properly made on the final number of pages at the conclusion of the case. If the trial has not yet occurred (or other disposal) then it is not possible yet to establish the final case fee.

We lodged our claim initially at this point not so that we are limited to the page count at, for example, the PCMH but so that there is no argument that the claim is made within time …

We submit that we should be paid on the PPE of the final page count at the conclusion of the case.

Yours faithfully

…"

6. As I have said, the LSC provided written reasons on 10 October 2009. In the LSC's letter of that date, reference was made to a further letter dated 17 September 2009 which said this:

"We do not accept the interpretation of the Regulations and guidance as set out in your letter is correct. You have sought to argue that a firm who transfers a Crown Court case to another firm at an early stage in the proceedings should be paid a percentage of the final case fee, based on the proxies at the time the case concludes.

Paragraph 10(2) of Schedule 2 of the Criminal Defence Service (Funding) Order 2007 ("the Order") provides:

"Where (a) a case is transferred to a new litigator … the original litigator and the new litigator must receive a percentage of the total fee in accordance with the table following sub-paragraph (6), as appropriate to the circumstances and timing of the … transfer of the representation order."

We consider that the Litigator Fee Team have correctly interpreted the Funding Order by regarding the "total fee" as being calculated on the basis of the timing of the transfer. If a case is transferred at or before the Plea and Case Management Hearing, it follows that only the PPE at the time of the transfer is relevant for calculating the graduated fee of the litigator who is transferring the case.

You have suggested that where there is a transfer, a percentage of the overall fee is split between the original and new litigator (eg, original litigator gets 25% and new litigator gets 75% meaning that the fund pays the same whether there is a transfer or not). The Litigator Graduated Fee Scheme (LGFS) does not work like this. If a case is transferred from the original litigator on or before the PCMH, the table which follows paragraph 10 in schedule 2 of the Funding Order, provides that the original litigator is able to claim 25% of the cracked trial fee. The new litigator who acts for the rest of the case (assuming it goes to trial) is entitled to claim 100% of the trial fee. This means that the total costs for that case to the tax payer are the trial fee and an additional 25% cracked trial fee."

7. Mr Thomas appeared before me at the appeal on behalf of his firm. In his submission, the reference to "the total fee" in the Funding Order is to the percentage to be applied at the conclusion of the case once all the evidence has been served. Were that not to be the case, this would result in more than only one "total fee" for the purposes of the calculation. In Mr Thomas' submission that would be contrary to the wording of the paragraph and the entire framework of the graduated fee scheme. In a nutshell, Mr Thomas contended that his firm should be entitled to a calculation of the litigator fee based on one "total fee" at the conclusion of the case which included all pages of prosecution evidence served up to that point. Where a case is transferred to a new litigator, Mr Thomas informed me that the LSC have been willing to accept claims from the original litigator based upon estimates of what the final PPE count will be. Lodging the claim in this way safeguards against any subsequent argument by the LSC that the claim has been submitted out of time. This arrangement assists the firm's cash flow, since otherwise no payment would be made until the conclusion of the case.
8. Mr Thomas informed me that when Form LF1 is submitted on the point of transfer, his firm will be paid based upon the PPE then registered on the computer at the Crown Court. His firm will be paid an allowance for those pages, but will then appeal on the basis that the matter will then be held in abeyance until the final page count is known. Payment can then be made for the balance. That had not happened in the present case, and in this respect Mr Thomas referred me to the Litigator Graduated Fee Scheme Guidance published in September 2009, which provides that the PPE count for the original litigator should be the figure at the point of transfer, not at the end of the case. However, the present claim was submitted before the guidance came into effect.
9. Mr Thomas accepted that if his submission succeeds, his firm would receive payment for documents that were not served until after the point of transfer and which his firm would not have read. In his submission that was not a problem, because the GFS works on the basis of "roundabouts and swings". One example of this is that the minimum number of PPE is 150, so that the litigator is paid for reading that number of pages even if the PPE served is below this figure.
10. For the reasons which follow I have decided that the appeal must fail, but as I indicated at the end of Mr Thomas' submissions, I consider exceptionally that his firm should at least have an allowance for the costs of the appeal given the appearance of a lacuna in the Funding Order on this point. Put simply, Mr Thomas' case is that under the Regulations the claim should be made at the end of the case; since there is only one "total fee" this must be based upon the page count at the conclusion of the matter not on the point of transfer, and that the original litigator should be paid based upon that figure. Whilst the reference to the "total fee" in the Funding Order suggests that there is but one fee payable, I do not agree that this is to be based upon the final page count at the conclusion of the case. The table following sub-paragraph (6) is clear that on a transfer up to and including plea and case management hearing, the fee payable to the original litigator is 25% of the cracked trial fee. At the point of transfer, the court records will indicate the number of pages of PPE then served. Accordingly, the correct calculation and payment can be made in accordance with paragraph 10(2) of the Funding Order. Moreover, if the original litigator delays in lodging Form LF1 until the conclusion of the case, I do not consider he will thereby benefit in the sense that payment will be made by reference to the PPE logged at the conclusion of the case. On the contrary, the LSC will take the figure at the point of transfer and the original litigator will be paid on the basis of that figure alone. For these reasons the appeal fails but if the Appellant considers that the point raises a point of principle of general importance, doubtless the firm will follow the appropriate procedure under paragraph 31 of the Funding Order (2007).
The sum of £400 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.