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

IN THE SENIOR COURTS COSTS OFFICE
ON APPEAL FROM REDETERMINATION
CROWN COURT AT SWANSEA

		The Senior Courts Costs Office Clifford's Inn, Fetter Lane London, EC4A 1DQ
		Dated: 25th February 2011

APPEAL PURSUANT TO PARAGRAPH 21 OF SCHEDULE 1 OF THE CRIMINAL DEFENCE SERVICE (FUNDING) ORDER 2001 / ARTICLE 30 OF THE CRIMINAL DEFENCE SERVICE (FUNDING) ORDER 2007

The appeal has been successful for the reasons set out below.

The appropriate additional payment, to which should be added the sum of £750 (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 Michael J Reed Ltd, solicitors of Carmarthen, against the decision of the Legal Services Commission not to pay 2 fees for a sentencing hearing.
2. The solicitors were instructed to represent Michaela Griffiths who was charged with being in possession of amphetamines and cocaine. The date of the offences was 23^rd October 2009. A representation order was granted on 22^nd December 2009 by the Dyfed Powys Magistrates' Court. On 14^th January 2010 the Llanelli Magistrates' Court committed Ms Griffiths to Swansea Crown Court for sentence.
3. The next day, 15^th January 2010, Ms Griffiths was arrested again and charged with being in possession of amphetamines. A representation order was granted by the Carmarthen Magistrates' Court on 21^st January 2010. On 3^rd February 2010 the Carmarthen Magistrates' Court committed Ms Griffiths to Swansea Crown Court for sentence.
4. Both cases were listed in the Crown Court for sentence on 12^th February 2010. The cases were given different numbers: S2010 0020 for the case committed from Llanelli and S2010 0048 for the case committed from Carmarthen. Ms Griffiths was sentenced in both cases on 12^th February 2010.
5. The solicitors claimed and were paid a fixed fee for each case. However the Commission subsequently sought to recoup one of the fees on the basis that "these two matters were dealt with at the same hearing and were, therefore, almost certainly one case rather than two".
6. The solicitors requested redetermination but the Commission remained of the view that only one fee was payable. In their written reasons dated 8^th November 2010 the Commission referred to paragraph 12 of schedule 2 to the Criminal Defence Service (Funding) Order 2007 and explained:

Paragraph 12 clearly says that the fee is payable in respect of a sentencing hearing.

In this case the Court records clearly show that, despite there being multiple Court Reference numbers, there was only one sentencing hearing, so only one fee is payable. The Funding Order has not changed in respect of Paragraph 12 since January 2008. My view is, therefore, that in all cases with a representation order granted after 14 January 2008, if there was only one hearing then there is only one fee.

7. Sub-paragraph 1(1) of Schedule 2 to the 2007 Funding Order provides:

In this Schedule –

"case" means proceedings in the Crown Court against any one assisted person –

…

(b) arising out of … a single committal for sentence, whether on one or more charges …

8. Paragraph 12 provides:

The fee payable to a litigator instructed in –

…

(c) a sentencing hearing following a committal for sentence to the Crown Court

is that set out in the table following paragraph 14.

9. The table following paragraph 14 provides a "fee payable (£ per proceedings)" of £255.32 for "Committal for sentence".
10. Mr Edwards, who represented the solicitors on the appeal, reminded me of my decision in R v Sturmer & Lewis [2009] 2 Costs LR 364 where the issue was whether one or more fee would be payable where a solicitor represented more than one defendant on a sentencing hearing following committal from the magistrates' court. In that case I concluded:

13. The table following paragraph 14 entitles a litigator to a fee of £212.77 net "per proceedings". "Proceedings" is not defined in the Funding Order. However it is clear that "proceedings" may involve more than one defendant, in distinction to the definition of "case": see for example the definition of "related proceedings" in article 2 and provisions such as paragraph 17 of schedule 2 to which I refer below.

14. It seems to me that the combined effect of paragraph 12 and the table following paragraph 14 is that where a solicitor is "instructed in … a sentencing hearing following a committal for sentence to the Crown Court" [para 12] the "fee payable" [para 12 and the table] is "£212.77 per proceedings" [the table]. "Proceedings" can involve more than one defendant and if there is only one "proceedings" only one fee will be payable however many defendants are represented by the solicitor.

15. That would appear to be consistent with the scheme of schedule 2 which generally allows one fee where a litigator represents more than one defendant but allows an uplift for representing additional defendants. However no uplift is prescribed in relation to the hearings listed in paragraph 12. Had it been intended that there should be an uplift for representing more than one defendant on a sentencing hearing following committal for sentence, provision could easily have been made for that; perhaps along similar lines to paragraph 17 which provides for uplifts "where a litigator represents more than one assisted person in [sent or transferred] proceedings" which are discontinued.

16. The interpretation that I have suggested would also seem to be consistent with the use in the table of the word "proceedings". Had it been intended that a separate fee would be payable for each defendant committed for sentence, the table could have provided for a fee payable per "case" (with the limited definition of that word provided by paragraph 1 of schedule 2).

17. As it would appear that these 2 defendants were dealt with at the Crown Court together at one hearing with the same case number, the solicitor instructed on the sentencing hearing is entitled to only one fee for those "proceedings". Accordingly the appeal is dismissed.

11. Mr Edwards submitted that in the present case there were 2 separate proceedings and 2 fees are payable. The cases commenced separately, were committed for sentence separately and were given separate case numbers in the Crown Court. They were heard together merely for convenience. There would of course be a separate sentence in each case.
12. He referred me to the Litigator Graduated Fee Scheme Guidance which provides at paragraph 2.23:

The use of the word single in paragraph 14(1) of Schedule 2 of the Funding Order is following paragraph 1 of the Funding Order where the LGFS applies to proceedings against one person arising out of a single alleged breach of an order. It therefore refers to each and every breach so if a person committed two breaches of an order at the same time, paragraph 14 applies separately to each breach.

13. Although that paragraph related to breaches of Crown Court orders Mr Edwards argued that the same reasoning must apply to committals for sentence. "Single" was used in the definition of "case" for committals for sentence as it was for breaches of Crown Court orders.
14. It seems to me that the reasoning in R v Sturmer & Lewis, where the question was whether "proceedings" could involve more than one defendant, does not apply here.
15. Given the definition in paragraph 1 of schedule 2, these were separate "cases". But were they separate proceedings? "Proceeding" means:

Law. A legal action or process; any act done by authority of a court of law; a step taken by either party in a legal case. Freq. in pl. (OED online ed.)

16. It seems to me that the actions or processes here were different. Again, the cases commenced separately, were committed for sentence separately and were given separate case numbers in the Crown Court. There was not only one action or process. There was not only one proceedings. There were two proceedings against one person but which were dealt with on the same occasion. That there was only one hearing is not, to my mind, relevant. The fee is payable "per proceedings" not per hearing.
17. It follows that the solicitors are entitled to 2 fees and the appeal is allowed.