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

Neutral Citation Number  [2023] EWHC 1326 (Costs)

Case No: M1168747, SCCO Reference: SC-2022-CRI-000148

 

IN THE HIGH COURT OF JUSTICE

SENIOR COURTS COSTS OFFICE

 

Thomas More Building

Royal Courts of Justice

London, WC2A 2LL

 

Date: 12/5/2023

 

Before:

 

COSTS JUDGE Brown

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R

v

DeSuza  

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Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013/Regulation 10 of the Costs in Criminal Cases (General) Regulations 1986

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THE JOHNSON PARTNERSHIP SOLICITORS

Appellant

 

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 THE LORD CHANCELLOR

Respondent

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Judgment

Costs Judge Brown:

 

For the reasons given below this appeal is dismissed.

 

1.                  The issue arising in this appeal  is the classification of a fee earner at the Appellant firm for the purpose of  determining costs due pursuant to Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 in proceedings  under the Proceeds of Crime Act 2022   (‘confiscation proceedings’).  

 

2.                  At the hearing of the appeal on 31 March 2023 the Appellant was represented  by solicitor - advocate, Ms. Hornby (a solicitor and a partner at the Appellant firm).  She subsequently provided me with further submissions and material in  subsequential emails of    31 March,  5 April 2023 and 9 May 2023. The Respondent, effectively the Legal Aid Authority (the ‘LAA’) did not appear and was not represented.

 

3.                  Paragraph 26 of Schedule 2 of the 2013 regulations  provides as follows:

           

Fees for confiscation proceedings

 

This paragraph applies to—

proceedings under Part 2 of the Proceeds of Crime Act 2002 (confiscation: England

and Wales);

…

(2) Where this paragraph applies, the appropriate officer may allow work done in the following classes by a litigator—

(a) preparation, including taking instructions, interviewing witnesses, ascertaining the prosecution case, preparing and perusing documents, dealing with letters and telephone calls, instructing an advocate and expert witnesses, conferences, consultations and work done in connection with advice on appeal;

(b) attending at court where an advocate is instructed, including conferences with the advocate at court;

(c)  travelling and waiting; and

(d)  writing routine letters and dealing with routine telephone calls.

 

(3) The appropriate officer must consider the claim, any further particulars, information or documents submitted by the litigator under regulation 5 and any other relevant information and must allow such work as appears to him to have been reasonably done in the proceedings.

 

(4) Subject to sub-paragraph (3), the appropriate officer must allow fees under this paragraph in accordance with paragraph 27.

(5) The appropriate officer must allow fees in accordance with paragraphs 27 to 29 as appropriate to such of the following grades of fee earner as the appropriate officer considers reasonable—

(a) senior solicitor;

(b) solicitor, legal executive or fee earner of equivalent experience; or

(c) trainee or fee earner of equivalent experience.

 

4.      Regulation 2 of the 2013 Regulations, provides as follows:

 

"senior solicitor" means a solicitor who, in the judgement of the appropriate officer, has the skill,  knowledge and experience to deal with the most difficult and complex cases;  

 

"solicitor, legal executive or fee earner of equivalent experience" means a solicitor, Fellow of the Institute of Legal Executives or equivalent senior fee earner who, in the judgement of the appropriate officer, has good knowledge and experience of the conduct of criminal cases;

 

"trainee solicitor or fee earner of equivalent experience" means a trainee solicitor or other fee earner who is not a Fellow of the Institute of Legal Executives, who, in the judgement of the appropriate officer, carries out the routine work on a case;

 

5.                  The fee earner in respect of which the dispute has arisen is Ms. Anrea Cowie (‘AC’).   The Determining Officer considered that she should be regarded as a Grade C fee earner for the purpose of the claim for costs in the above headed matter; the Appellants says she should be regarded as a Grade B fee earner.

 

6.                  The background can be shortly stated.  A Representation Order was made in favour of the Appellant  on 16 May 2020 in respect of the Defendant who was charged with possession of a controlled drug (cannabis) with intent to supply and various  firearm offences. The offences  involved an attack  on a property in the course of which rounds were fired; and  drugs that were discovered after that incident. The Defendant pleaded guilty to the drugs charges at   PTPH on 4 September 2020 and  subsequently  entered pleas of guilty to two of the three firearm offences. On 9 July 2021 the Defendant was sentenced on various terms of imprisonment (6 years and 8 months on one particular offence to run concurrently). Work was undertaken  on the confiscation proceedings between 10 August 2021 and 25 May 2022.  It appears that the order in the confiscation proceedings was agreed  and made at a mention hearing  on 20 May 2022.   An order of confiscation was made in the sum of  £272.63 to be paid within 3 months (in default the Defendant was to serve 14 days imprisonment consecutive to the term of custody which the Defendant was liable to serve for the substantive offence). The Benefit amount was, I understand, assessed at £8,000.

 

7.                  AC is not qualified either as a solicitor or as a legal executive. It is said that she has experience which is equivalent to a solicitor or legal executive and, as it is put, had the knowledge and experience to conduct criminal cases.

 

8.                  I am told that AC has been accepted as grade B fee earner by case workers with the LAA  in what are referred to as PL1 (‘fastrak’) claims where, as I understand  it  profit costs are under £2,000.    I am not, of course  bound by those decisions. It appears that in this claim (and perhaps other  similar claims) the Appellants  relied upon the decision of a Taxing Master in R v Badham SCTO 621/93. However   despite efforts on the part of Ms.  Hornsby to obtain a copy of this decision  she was  unable to produce it for me.    

 

9.                  I have not  received any witness statement from the Appellant setting out the factual basis of the matters relied upon in support of appeal.  I have however read and considered all the matters set out in  various documents provided by and  relied upon by the Appellants. It is normally easy to see and check whether a fee earner  is  a qualified solicitor or   Legal Executive (FCILEX) from the appropriate  roll or directory. The matter is not so straightforward where the fee earner is of “equivalent experience”. In the civil context certification of  a bill is required and the status and grade of the fee earner is to be  set  out  in accordance with the SCCO Guide (see AKC v Havering   [2022] EWCA Civ 630).

 

10.  I understand however that AC obtained  a law degree from  degree from Derby University in July 2010 (classed as 2:1). She   worked in retail as an assistant regional manager  for the supermarket chain, Morrisons, between 1996 and 2001 and in  a managerial role between 1999 and 2001 (responsible for training of other managers).  Whilst studying  I am told that AC   thereafter worked  for Costsco and worked full time there from 2001 to 2019. I am told  she was  working in bakery department where she gaining  experience of   product management. She began her employment with the Defendant in January 2019 and therefore had been employed for some 2.5 years when she commenced work in the confiscation proceedings in this case.  

 

10.              AC  undertook the LPC (Law Professional  Course)  between 2015 and 2017. I am told that she was not  able to sit all of the exams for personal reasons but passed all the ones that she took (albeit it is not clear which of the exams these were).   She has  now resumed her training to be a solicitor and switched to the SQE (Solicitors Qualification Examination) I am told that she has also attended  courses including a course,  I think,  in September 2022  entitled Proceeds of Crime Update.

 

11.              I understand that the  Appellants are one of the largest criminal defence firms  in the country and have one of the largest and most significant caseloads.   AC  has been employed in the Fraud and Business Crime department. It is said in the Notice of Appeal  which is    dated December 2022  that 80% of her time is spent during office hours dealing with confiscation  cases and the remaining time, 20%, dealing with substantive fraud cases.

 

12.              I   understand also that the work that AC undertakes  involves direct liaison with judges, prosecuting barristers and financial investigators, and that she  works on cases which require  examination of banking material, work which it is said  might otherwise may be sent out to a Forensic Accountant. I am told that she enters into discussions with the Financial Investigators about the case and ways of it being resolved and instructs counsel as to how the case will proceed (I note that in the materials some of the counsel are described as inexperienced).   I  am told that  she is   involved in preparing schedules and examining material which otherwise would or might have been considered by a Forensic Accountant.   

 

13.              I have  not been provided with any of the underlying papers in these proceedings. There is  no clear indication of any particular  complexity or difficulty (it is, it might appear, a ‘fastrak’ case).   It seems to me that the  consideration of bank statements and  preparation of   schedules on a case such as this may well be suitable work for a grade C. Some  confiscation cases might require consideration by a  forensic accountant but it is difficult to see how this could be such  a case. Indeed it seems to me that many claims such as this would involve significant routine work and work which is suitable for  a Grade C fee earner whether or not in fact undertaken by a Grade B fee earner.  Indeed  even if of some of the work might in fact be done by a Grade B  I would not accept that such work would not necessarily be paid  at Grade B rates.

 

14.              I am required to consider whether  this particular  fee earner  had equivalent experience in the sense required by the provisions.   That appears to require an assessment of such experience as  at the time when the work was carried out.    

 

15.              It is unclear to me  quite what degree of experience had gained by the time AC  came to be working on this case or by the time the case had finished. It is  suggested  that the  nature of the work undertaken by her after she had been employed  for two years changed  so that the work was more complex.   I would take it that the work she had been undertaking  prior  to this was Grade C work, or at least substantially so. It  would seem unlikely that when she first started working for the Appellants she would have been working without close supervision and that her work would in any  real sense would have been fairly routine work. Indeed whilst the nature of the work appears to have changed I am told that that AC’s work  continues to be supervised.

 

16.              In my judgment the Determining  Officer was correct  to reject the  contention that  the AC’s experience would have  had the equivalent  experience of a solicitor or a qualified litigators executive (CFILEX).  I think that the  Appellant’s case   understates the   nature,  extent and breadth of the training (including the professional  training of an academic  nature leading to     examination)  and the experience of both solicitors and legal executives  on qualification.   

 

17.              There was little  attempt, by Ms. Hornby to address the experience that would have been gained by a trainee  solicitor  or a legal executive by the time they had qualified (as the Determining Officer had done in her decision).  However she accepted  in the  hearing it was appropriate for me to consider the publicly available information as to what the training involved. I shall not  set out  the detail [1] of the training which I have considered and is probably well known by those who might read this decision and in any event  is available  online.

 

18.              For those who have a  law degree there is normally another three years of training in order to become a solicitor. For those seeking to qualify as a  solicitor there is one  year of study in areas which under the new SQE2 [2] at least appear to include   practical  matters  (such advising and advocacy, interviewing, practical legal research and opinion  writing ; there are also modules on  professional conduct and regulation. There are thereafter two years’  of supervised  and defined qualifying work experience.

  

19.              To become a Chartered Legal Executive, a period of qualifying employment is required  over a  three year period (one of which must be completed as a  graduate of CILEX),  To qualify as a CILEX Fellow, applicants need to demonstrate eight competencies against a range of learning outcomes; this requires the submission of  a work-based learning portfolio containing evidence of  knowledge, experience and skills based upon their own work experience. As I understand it in order to be eligible to apply for Fellowship via a work-based learning portfolio the individual  must have completed at least 3 years’ qualifying employment of which one year must be served as an Advanced Paralegal member of CILEX.

 

 

20.              It is asserted that the nature of the work AC  is doing on a day to day basis means that she has gained greater experience (or, at least, no less) in this area than most qualified criminal solicitors and her experience  is  more wide ranging than a similar period of experience in a much smaller firm. No material has been provided in support of this assertion and I am not satisfied that this is the case. As experience in dealing with other areas of work suggests it is quite possible to obtain experience in dealing with very particular kinds of claims or litigation  but have little or no experience in others. Unqualified fee earners in at least one well known large civil firm specialise in preparing schedules of loss in personal injury claims; while that gives them some specialist knowledge, which not all solicitors may have, it is a long way short of the knowledge experience and understanding that would be expected of a  solicitor. Indeed my impression is that AC’s work  appears quite specialised in confiscation proceedings, some of which may well have been relatively straightforward. No doubt this will provide some  training in these particular cases but I would not regard this as providing general degree of experience that is required. I accept, of course, that confiscation matters are of importance (given not least that the Defendant’s liberty is at stake) and  the   increasing importance that can be attached to determining the  Benefit figure  (and the continuing exposure  of the Defendant to a claim for confiscation) but I am not satisfied  that AC had  substantial experience of  criminal cases generally (as the definition of a Grade B fee earner might be said  to contemplate) or of a   broader range of  more complex confiscation proceedings that I would expect someone qualified as a solicitor or a legal executive in this field to have. 

 

21.              I have  considered all the matters that have been advanced on behalf of the Appellant.       I am  told  that AC was an advisor for the Citizens Advice Bureau, as a volunteer, for approximately 18 months between 2017 and the end of 2018. Little is said about the nature of extent of the work (albeit it is  said that she  was  advising on area of law  including criminal law). I also understand that AC became a fully accredited Police Station Representative  in December 2020; as a result she is able to attend upon clients for the full range of offences - and in this respect  she has the same status, as regards the provision of this advice, as a solicitor (see para. 6.12 and following of the Revised Code of Practice for the detention, treatment and questioning of persons). Even accepting,  as I do,  that  accreditation goes some way to establishing  ‘equivalent experience’ and does provide assurance as to competence to  attend upon a client in a police station (accreditation which I am told requires completion of a number of written portfolios under the supervision of a duty solicitor as well as an oral examination specifically demonstrating a working knowledge of all offences),    it is not  clear  what experience AC has in fact  acquired in doing this work.   Plainly in any event this accreditation cannot of itself be equivalent to the professional  qualification of solicitor  and legal executive.

 

22.              Indeed quite apart from any comparison that may be made between the  nature of the work that I would expect a trainee solicitor or a graduate FILEX  to have been undertaking with that which I  would expect to have been undertaken by AC in the first two years of employment,       as the Determining  Officer commented,   the route to becoming a qualified solicitor is far longer than 2.5 years when taking   the LPC or the SQE are taken into account. The same is  true of a legal executive.

 

23.              I understand that  AC is  some 45 years of age. Shen has the benefit of experience from her previous careers. Her  working  background is, as I set  above,  in retail  and I accept  that she would in general terms have  had considerable experience of   business processes and procedure. However it seems to me that the type of work which she undertook before joining  the Appellants  is to be distinguished  from the work  of, say, a police officer who will have considerable   experience in law enforcement.      Whilst, as the  Determining Officer suggested,  the age and life experience of AC may well have assisted in her understanding the principles of confiscation, her previous experience in retail cannot reasonably be interpreted as equivalent experience  to that of a solicitor or legal executive.

 

24.              I note too that AC obtained a Masters degree  in  2012 which she obtained (impressively) whilst apparently also working and which included modules in Fraud, Commercial Theories, International Trade and Law and Economics).  But as with a Bachelor’s  law degree there is, in my judgment, a significant difference between  accredited professional training (albeit some of it is academic in nature) and a purely academic degree.         

 

25.              I have also seen a reference provided by counsel (now senior counsel)  who had been instructed by the Appellant firm. It is set out in an email   dated 6 September 2022. Counsel states that   he had received three instructions over the previous 12 months from AC in particular. In his opinion AC has conducted the cases competently. He describes her  as “a first rate litigator, who has the experience and ability to marshal all matters of preparation without the need for any assistance from counsel”. He says her working knowledge of the relevant law is excellent, and  that he has  had the  benefit of relying upon a skeleton argument she drafted single-handedly in one case. Her efforts, he says, saw all three case resolved favourably (a benefit figure in excess of £80k to discharging the proceedings altogether following receipt of a persuasive s.17 statement drafted by AC). Further he said that, AC is adept at negotiating directly with prosecuting counsel and, he ss is strong evidence of her established seniority.

 

26.              I take into account all that has been said and have every reason to think that  AC has acted  competently.  Experience of the sort that has been described is undoubtedly evidence which goes to demonstrate that the AC is rapidly developing a high degree of experience in confiscation proceedings  and that the Appellants  firm have increasingly entrusted her to do more responsible work.  I am told  that others in the  firm seek out her advice and assistance.  There is, of course, everything to admire about AC’s career development.    But I do not think that this reference either on its own or taking into account all the other matter that have been said,  is sufficient to establish that s has the necessary equivalent experience  as at the time when the work was done in this case.

 

27.              In Paturel  v Marble Arch Services Limited [2005[ EWHC 1055 QB Slade J  was considering, in the  context of civil proceedings,   a similar provision set out in the SCCO Guide to Summary Assessment to those that  that I am required  to consider here. I note  her observation in that case  thar  experience  was frequently  as valuable, if not more valuable, in this area than an academic or professional qualification. This   comment was however  made when considering the grade of  individual with  15 years of prior litigation experience.

 

28.              It strikes me that if Determining Officers too  readily accepted an assertion that the experience was equivalent  to the training required for a solicitor or legal executive it would have the effect of devaluing  these qualifications in the eyes of the firms who employ fee earners and of encouraging  work  to be done by  untrained (and unregulated)  fee earners  (presumably at substantially lower rates of pay than those who are qualified); indeed it might  discourage individuals such as  AC from seeking appropriate accreditation and qualification.  Of course, as the rules provide,  that does not mean that an individual may not obtain equivalent  experience in practice with or without other qualifications: it is plain that many individuals do have such experience, see for  instance    R v   Lambie SCCO -2021-CRI -000071  (a decision of Costs Judge Leonard) and  R v Ghandi 163/9  (a decision of my own): the  former  case involved  an individual who had completed the  Bar Professional Training Course  and had  undertaken  6 months’ training   in barrister chambers  (described as an  internship);  in the latter case the individual had qualified as an attorney in a different jurisdiction  and  had substantial  responsibility for cases.

 

29.              To my mind there is no set period over which such experience can be gained; it  seems to that it is not simply a question of how long the fee earner been employed.   It depends  on the quality and nature and breadth of  the  experience. I can see how with sustained experience of a range of  demanding cases with only a standard  degree of supervision  a competent fee earner,   albeit unqualified, might  relatively  rapidly progress to Grade B.  But the information provided  suggests that it was  only a relatively short period  before work started on this case and after  there a change in the nature of work which  I have referred to above (at [15]). The work on this case was finished, as I say in in May 2022.  

 

30.               In  my judgment and on the information available AC was correctly regarded as a Grade C fee earner at the time when the relevant work was carried out.