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

IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		31 July 2024

This Appeal has been dismissed for the reasons set out below.

COSTS JUDGE LEONARD:

1. This appeal concerns a claim for payment under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.
2. Defence litigators such as the Appellant will be paid for their work by reference to the Graduated Fee provisions of Schedule 2. The Graduated Fee due is calculated, along with other factors, by reference to the number of served Pages of Prosecution Evidence ("PPE"). The PPE count is subject to a cap, which for present purposes is 10,000 pages, but it is open to litigators, in addition to the Graduated fee calculated by reference to the PPE count, to claim an additional payment for "special preparation".
3. The definition of "pages of prosecution evidence" ("PPE") is to be found at paragraph 1, subparagraphs (2)-(5) of Schedule 2:

(2)  For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).

(3)  The number of pages of prosecution evidence 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 served prosecution documents or which are included in any notice of additional evidence.

(4)  Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(5)  A documentary or pictorial exhibit which—

(a)  has been served by the prosecution in electronic form; and

(b)  has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances."

4. The special preparation provisions are to be found at paragraph 20 of Schedule 2:

"20.— Fees for special preparation

(1)  This paragraph applies in any case on indictment in the Crown Court—

(a)  where a documentary or pictorial exhibit is served by the prosecution in electronic form and—

(i)  the exhibit has never existed in paper form; and

(ii)  the appropriate officer does not consider it appropriate to include the exhibit in the pages of prosecution evidence; or

(b)  … where the number of pages of prosecution evidence, as so defined, exceeds 10,000,

 and the appropriate officer considers it reasonable to make a payment in excess of the fee payable under Part 2.

(2)  Where this paragraph applies, a special preparation fee may be paid, in addition to the fee payable under Part 2.

(3)  The amount of the special preparation fee must be calculated from the number of hours which the appropriate officer considers reasonable—

(a)  where sub-paragraph (1)(a) applies, to view the prosecution evidence; and

(b)  where sub-paragraph (1)(b) applies, to read the excess pages,

 and in each case using the rates specified...

(4)  A litigator claiming a special preparation fee must supply such information and documents as may be required by the appropriate officer in support of the claim.

(5)  In determining a claim under this paragraph, the appropriate officer must take into account all the relevant circumstances of the case."

The Background

5. The Appellant represented Imran Taj ("the Defendant") in the Crown Court at Manchester. The case against the Defendant was that he participated in a conspiracy by an Organised Crime Group (OPG) to steal high value motor vehicles. According to the Appellant, the conspiracy involved fourteen other people (although according to the Legal Aid Agency's Determining Officer, there were nine co-defendants on the indictment). The value of the stolen vehicles was put by the Crown at in excess of £2.25 million.
6. Four Industrial Units across the Greater Manchester area were used by the OCG to dismantle and/or disguise stolen vehicles. A unit tenanted by the Defendant was searched by police officers and three stolen vehicles or parts of stolen vehicles were found.
7. The Defendant faced one count of conspiracy to handle stolen goods and one count of possession of an article for use in fraud (a computer and software for the production of false vehicle registration plates). According to the Appellant, the Crown's case was that the Defendant played an important role in the conspiracy. According to the Defendant, his role and his contact with other defendants was very limited.
8. According to the Determining Officer, the Crown Court's Digital Case System "DCS" confirms service of 18,520 PPE, broken down into 808 pages of witness statements and 17,712 pages of documentary exhibits, of which approximately 13,575 pages related to defendants' call data. This was served in PDF format, but also made available in spreadsheet format.
9. The Appellant made a claim for 399.9 hours' special preparation for the consideration of 8,112 PPE over the 10,000 limit. The Determining Officer allowed 150 hours at a Grade B level of seniority. The Appellant appeals on the basis that the full 399.9 hours should be allowed in particular given the Appellant's duty to consider all of the served evidence. Ultimately, the Appellant's analysis of the data demonstrated that the Defendant had indeed had very little contact with his co-defendants.

Conclusions

10. As the Determining Officer has pointed out, the Appellant's claim comes to 3 minutes per page, regardless of the content or relative importance of the data considered. It includes time claimed for reviewing witness statements, which (albeit not specifically excluded from a claim under paragraph 20(1)(b) of Schedule 2) would normally be treated as falling within the first 10,000 pages of the PPE, with the special preparation claim limited to the analysis of electronic data above the 10,000 page limit.
11. More importantly, this case is very similar to R v Lastowski [2024] EWHC 1854 (SCCO), an appeal by the same Appellant which I dismissed earlier this month. As in R v Lastowski, the Appellant has put in a very substantial claim for special preparation for a manual review of electronic evidence that lends itself to electronic search methods which could have yielded the same results in a fraction of the time. I would refer to my observations in R v Lastowski, many of which have a bearing on this case.
12. As in R v Lastowski, I do not believe that a review of the PPE in excess of 10,000 pages, using an appropriately efficient electronic method, could have required more time than the 150 hours (over eighteen working days) that the Determining Officer has already allowed. That would be the case regardless of whether one was to include time spent on witness statements.
13. For those reasons, this appeal is dismissed.