England and Wales High Court (Queen's Bench Division) Decisions

IN THE SUPREME COURT
COSTS OFFICE

		Royal Courts of Justice London, WC2A 2LL
		01/06/2010

Mr Justice Sweeney :

Introduction

1. The issue that I am asked to decide, with the benefit of assessors, namely Master Simons and Mr Jeremy Morgan QC, concerns fees payable to instructed advocates in the Crown Court under the provisions of the Criminal Defence Service (Funding) Order 2007 ("the 2007 Order"). The issue is whether, when a case has been sent to the Crown Court under the provisions of section 51 of the Crime and Disorder Act 1998, as amended ("the 1998 Act"), the fees payable for attendance at the preliminary hearing (the first appearance in the Crown Court, at which time it is very often the position that no indictment has been signed), and for conducting a preliminary conference at court on the same occasion, are part of the basic fee provided for under the Advocates Graduated Fee Scheme ("the AGFS"), as set out in Schedule 1 of the 2007 Order, or whether the fees should be paid in addition to the basic fee, following ex post facto taxation. As will become obvious, the issue is not without complication. At the heart of it lies the question of the true construction of the phrase "every case on indictment" in paragraph 2(1)(a) of Part 1 of Schedule 1 to the 2007 Order, which sets out the relevant qualifying criteria for the AGFS.

Background.

2. The Respondent is a barrister. He was instructed for the Defence in the case of R v Clokie, in which a representation order was issued on 11 December 2007. The case was sent for trial in the Guildford Crown Court, under the provisions of section 51 of the 1998 Act. The Respondent duly travelled to the Guildford Crown Court (incurring expense in the process), held a preliminary conference with the defendant at court, and appeared on the defendant's behalf at the preliminary hearing ("the work"). At that stage, no indictment had been signed.
3. It is common ground between the parties that the payment of any fees in connection with the work by the Respondent was governed by the 2007 Order, which came into force on 30 April 2007, and which applied (save for Very High Cost Cases) to the entitlement of instructed advocates to payment out of public funds in relation to Criminal Defence matters in the Crown Court.
4. The Respondent sought to persuade the Determining Officer that the fees for the work should be paid in addition to the basic fee, following ex post facto taxation. In support of this argument the Respondent relied on the decision of Costs Judge Campbell in R v Smith [2004] 2 Costs LR 348, which was concerned with the provisions of the Criminal Defence Service (Funding) Order 2001 ("the 2001 Order"). In that case the learned Costs Judge decided that fees for attendance at preliminary hearings, when (as here) no indictment had been signed, fell outside the graduated or fixed fee scheme provided for in Schedule 4 to the 2001 Order, and were to be determined on an ex post facto basis in accordance with the provisions of Schedule 3 to that Order. The decision in Smith was principally based upon the conclusion that the phrase "every case on indictment" in the qualifying criteria in paragraph 2(1) of Part 1 of Schedule 4 to the 2001 Order meant every case in the Crown Court in which there was an indictment in existence at the time the relevant preliminary hearing took place, rather than every such case in which there was the possibility of an indictment in the future, whether or not one existed at the relevant time.
5. The Determining Officer disagreed with Respondent. In accordance with Article 29(8) of the 2007 Order she gave written reasons on 8 September 2008. She concluded, largely based on the Graduated Fee Guidance for Determining Officers in relation to the 2007 Order, that the fees for the work were included within the basic fee.
6. On 22 September 2008, the Respondent appealed, under the provisions of Article 30 of the 2007 Order, against the decision of the Determining Officer. The appeal was heard by Costs Judge Rogers. For whatever reason, the Lord Chancellor did not, as he could have done, take part in that appeal. The Respondent contended, inter alia, that no change had occurred in any of the circumstances that gave rise to the decision in Smith. Costs Judge Rogers gave judgment in writing on 27 February 2009. He concluded that, in accordance with the decision in Smith, and on the plain meaning of the words "every case on indictment" in paragraph 2(1)(a) of Part 1 of Schedule 1 to the 2007 Order, the fees for the work fell outside the AGFS because there was no indictment in existence at the time that the work was done, and thus payment was required to be determined on an ex post facto basis, as it would have been under the 2001 Order. In the result, he assessed that the proper fees for the work, and for the expenses incurred, was a total of £216.40.
7. The Lord Chancellor ("the Appellant") now appeals against that decision under the provisions of Article 31(5) of the 2007 Order.
8. In accordance with Article 31(8) of the 2007 Order, I have the same powers as the Determining Officer and the Costs Judge, and may reverse, affirm, or amend the decision, or make such other order as I think fit. The Appellant invites me to allow the appeal, to reverse the order made by the Costs Judge, and to hold that the Respondent's payment for the work was incorporated within the basic fee element of the graduated fee. The Respondent invites me to reject the appeal.

Grounds of Appeal.

9. The Grounds of Appeal are, in summary, that the learned Costs Judge erred in that:-

i) He failed to identify any provision in the 2007 Order which permitted counsel to be paid costs on an ex post facto basis for the work he had done. Further, he failed to appreciate that there is no such provision, and accordingly there is no legal basis on which such a payment may be made. Indeed, paragraph 8 in Part 4 of Schedule 1 to the 2007 Order contradicts the claim that there could be any basis for payment outside the AGFS, given that it provides that: "except as provided under this Part, all work undertaken by an advocate is included within the basic fee…".

ii) He misconstrued the meaning of "case on indictment" in paragraph 2(1)(a) in Part 1 of Schedule 1 to the 2007 Order because it means a case that is to be tried on indictment, rather than a case in which there is an indictment in existence at the time the relevant work was done. A case is a "case on indictment" even when no indictment has been signed. It would be random and wrong to determine the basis for payment for a preliminary hearing depending on whether or not an indictment had been signed.

iii) His construction of the 2007 Order was wrong in that he failed to recognise that Schedule 1 to the Order makes it plain that a case sent to the Crown Court under section 51 of the 1998 Act is a "case on indictment", because paragraphs 2(7) and 2(8) in Part 1 of the Schedule, and paragraph 18 in Part 4 of the Schedule, refer to cases sent under section 51, and provide for payment of a proportion of the basic fee in the event that proceedings are discontinued, even when such discontinuance occurs before the prosecution has served its evidence, and thus at a stage when there is unlikely to be an indictment. Therefore there is no logical reason why work done in relation to all preliminary hearings should not be remunerated in the same way.

iv) He failed to identify, or attach weight to, material differences between the 2001 and 2007 Orders. In particular, Schedule 1 to the 2001 Order recognised two types of payment, namely graduated or fixed fees under the combined provisions of paragraph 15(2) of Schedule 1, and Schedule 4, and the payment of such fees as were considered, on ex post facto assessment, to be reasonable for the work (other than that for which a graduated or fixed fee was allowed) under the combined provisions of paragraph 15(6) of Schedule 1, and Schedule 3. Whereas, in contrast, the 2007 Order contains no provision equivalent to paragraph 15(6) and Schedule 3 to the 2001 Order, and all fees for work falling within the qualifying criteria in paragraph 2 of Schedule 1 to the 2007 Order are thus required to be paid on the basis of a graduated or fixed fee, and there is simply no power under the 2007 Order to order the ex post facto assessment and payment of fees.

Outline submissions.

10. At the outset of the hearing of the appeal, the Respondent applied to strike out, or to dismiss, the Appellant's Notice dated 26 May 2009. This argument was based, in significant part, upon the Appellant's lack of response to the appeal from the Determining Officer, and his conduct thereafter. It is unnecessary to go into the details of the arguments on both sides. For reasons that I gave in a judgment at the time, I dismissed the application.
11. The Appellant has however made clear, among other things, that in the event of his success on this appeal, he would not seek the return of the £216.40 from the Respondent, nor would he seek any costs order against him.
12. On behalf of the Appellant, Mr Nicholls points out that Article 5 of the 2007 Order provides that claims for fees by an instructed advocate in the Crown Court must be made and determined in accordance with Schedule 1. He also points out that Article 23 provides that once fees payable to an advocate have been determined under Schedule 1, the appropriate officer must authorise payment accordingly. Against that background, Mr Nicholls submits, in summary, that Costs Judge Rogers erred in a number of respects, in particular:-

i) He failed to recognise that that the 2007 Order provides an exclusive code to determine how, and in what amount, advocates should be paid for criminal defence work, and also failed to recognise that unless a provision in the Order which permits payment can be identified, no payment is due. He identified no such provision, and there is none – hence he lacked the power to make the order that he did. In any event, paragraph 8 in Part 4 of Schedule 1 to the 2007 Order makes clear that, unless otherwise provided, all work undertaken by an advocate is included within the basic fee, and the effect of his decision is also to contradict this provision. In addition, he provided for payment for the conference at court, yet by paragraph 16(2) of Part 4 of Schedule 1, fees for such a conference are included within the basic fee.

ii) He misconstrued the meaning of the phrase "every case on indictment" in paragraph 2(1) of Part 1 of Schedule 1 to the 2007 Order, by failing to take into account the fact that it follows from s.51 of the 1998 Act itself that a case sent for trial is a case on indictment because, ipso facto, it is a case in the Crown Court that is to be tried on indictment, whether or not an indictment exists at the time a particular item of work is carried out. In addition, he failed to appreciate the overall reforming objective of the Order, and thus the need to construe the phrase "every case on indictment" in the necessarily purposive manner required to avoid otherwise absurd consequences. The proper construction is thus that it means every case that is to be tried on indictment. Any other conclusion would lead to arbitrary and inconsistent decisions, depending on the fortuity of whether or not an indictment had been signed. In any event, read as a whole, the qualifying criteria in paragraph 2 in Part 1 of Schedule 1 to the 2007 Order cover all Criminal Defence matters in the Crown Court for which an advocate might be paid out of public funds, and it would be inconsistent with the scope of the paragraph, understood in that way, to suggest that there were particular matters related to Criminal Defence work in the Crown Court which fall outside the Schedule.

iii) He failed to take proper account of the fact that the effect of paragraphs 2(7) and 2(8) in Part 1 of Schedule 1 to the 2007 Order, combined with paragraph 18 in Part 4 of Schedule 1, includes the provision of payment of part of the basic fee when a case in the Crown Court is discontinued prior to the service of the prosecution evidence (and therefore after there may have been a preliminary hearing without an indictment being in existence), thus meaning that in those circumstances payment for attendance at any such preliminary hearing would be covered by the payment of part of the basic fee. Thus he failed to recognise that there is no logical reason why preliminary hearings without an indictment should not be covered by the basic fee if there is no discontinuance. In any event, the fact that the 2007 Order refers, in Schedule 1, to cases sent to the Crown Court under s.51 shows that, however one might otherwise construe the words "case on indictment" as used in Schedule 1, that term includes cases sent to the Crown Court under s.51, and therefore preliminary hearings.

iv) He was wrong to base his decision on that of Costs Judge Campbell in Smith (above) as there are highly significant differences between the 2001 and 2007 Orders. In particular, the 2001 Order provided for payment by graduated or fixed fee, and for payment for work outside the graduated or fixed fee scheme by way of a reasonable fee assessed ex post facto. Whereas, in contrast, the 2007 Order provides that all fees are to be paid on the basis of a graduated or fixed fee. He failed to identify any provision in the 2007 Order which permitted the Respondent to be paid costs on an ex post facto basis; and also failed (as indicated above) to recognise that Paragraph 8 of Part 4 of Schedule 1 provides that "all work undertaken by an advocate is included in the basic fee" unless express provision is made otherwise. Had he appreciated the differences between the Orders, he would have realised that the changes in the 2007 Order necessarily meant that a preliminary hearing had to be remunerated as part of the basic fee, and that there was no other legal basis on which payment for that work could be made.

13. In response, the Respondent submits, in summary, that:-

i) Costs Judge Rogers' reasoning and decision were correct.

ii) The meaning of the phrase "every case on indictment" in the 2001 Order was well established – not least as a result of the judgment in Smith. The 2007 Order used precisely the same words. Parliament must have intended that the words would bear their well established meaning. If that had not been the intention, it would have been easy for Parliament to have used different words, such as "every case in the Crown Court sent for trial under the Crime and Disorder Act 1998 section 51, or committed for trial under the Magistrates' Courts Act 1980 section 6".

iii) Section 18(1) of the Access to Justice Act 1999 ("the 1999 Act") provides the requisite basis for funding the ex post facto payment.

iv) In accordance with a considerable body of authority to which he drew my attention, including the decisions of David Clarke J in Meeke v Secretary of State for Constitutional Affairs [2006] 1 Costs LR 1 and Walker J in Gordon & Farr v Secretary of State for Constitutional Affairs [13^th November 2006] (to which I would add the decision of Gray J in Secretary of State for Constitutional Affairs v Stork [2005] EWHC 1763 QB) it is a well established principle that there is no equity in Regulations dealing with Graduated Fee Schemes, rather they are mechanistic and formulaic, and must be construed as they stand.

14. As to the Respondent's last point, Mr Nicholls submits that it is precisely the true construction of the 2007 Order, as it stands, that will provide the answer for which he contends in this appeal.
15. I propose to examine these arguments under the following headings:-

i) The 2001 Order

ii) R v Smith

iii) The 2007 Order

iv) The judgment of Costs Judge Rogers

v) Discussion

vi) Conclusion.

The 2001 Order

16. Section 51 of the 1998 Act abolished committal proceedings for offences triable only on indictment, and made provision for cases of specified types to be sent from the Magistrates' Court to the Crown Court to be tried on indictment. The combination of Schedule 3 of the 1998 Act and Regulations made thereunder required that when a person was sent for trial, and subject to any application to extend time, copies of the documents containing the evidence on which the charge(s) was/were based were to be served on that person, and the Crown Court, within 42 days. After the case had been sent to the Crown Court, it would typically be listed for a preliminary hearing within 7-10 days. Such hearings would deal, inter alia, with the actual time to be allowed for service of the prosecution case, fixing the PCMH, and other case management directions.
17. Section 14 of the 1999 Act made provision for the Legal Services Commission (the Criminal Defence Service) to fund the representation of an individual granted that right in criminal proceedings, and for Orders to be made as to the provision of payment to practitioners for such representation.
18. All this was in force before the coming into force of the 2001 Order on 2 April 2001. The relevant parts of Articles 3-5 of the 2001 Order, for present purposes, were as follows:-

"3. –(1) Except as provided in paragraph (2), the duty of the Commission under section 14(1) of the [1999] Act shall, until 4^th April 2005, have effect as a duty of the Lord Chancellor in relation to representation in:

(a) ………

(b) ………

(c) proceedings in the Crown Court.

…………..

4. Other than where the case is remitted back to the magistrates' court, where a case is sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1988, any fees in relation to work carried out in the magistrates' court shall be assessed and paid together with the Crown Court fees for that case.

5. Remuneration in respect of the proceedings mentioned in Article 3(1) shall be in accordance with the provisions of Schedules 1 to 4."

19. The relevant paragraphs of Schedule 1 to the 2001 Order were as follows:-

"1. (1) Costs in respect of work done under a representation order to which this Schedule applies shall be determined by the appropriate officer in accordance with this Schedule.

(2) In determining costs, the appropriate officer shall, subject to the provisions of this Schedule:

(a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and

(b) allow a reasonable amount in respect of all work actually and reasonably done.

……………..

15(1) The appropriate officer shall consider the claim, any further particulars and information submitted by an advocate under paragraph 14 and any other relevant information and shall allow such work as appears to him to have been reasonably done.

(2) In any proceedings specified in paragraph 2 or 3 of Schedule 4, the appropriate officer shall allow a graduated or fixed fee calculated in accordance with that Schedule in respect of all such work allowed by it as falls into the classes specified in paragraph 6(2) of that Schedule.

………..

(4) Where it appears to the appropriate officer that the fixed fee allowed by Schedule 4 in respect of any proceedings specified in paragraph 3 of that Schedule would be inappropriate taking into account all of the relevant circumstances of the case, he may instead allow fees in accordance with sub-paragraphs (5) and (6) below.

(5) The appropriate officer may, except in relation to work for which a graduated or fixed fee is allowed under subparagraph (2), allow any of the following classes of fee to an advocate in respect of work allowed by him under this paragraph:

(a) a basic fee ..

(b) a refresher fee ..

(c) subsidiary fees for: ..

(iii) attendance at pre-trial reviews, applications and appearances (including bail applications and adjournments for sentence) not covered by (a) or (b).

(6) In the case of proceedings in the Crown Court, the appropriate officer shall, except in relation to work for which a graduated or fixed fee is allowed under sub-paragraph (2), allow such fees in respect of such work as he considers reasonable in such amounts as he may determine in accordance with Schedule 3, provided that where it appears to the appropriate officer, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable by way of fees in accordance with Part 2 of Schedule 3 would not provide reasonable remuneration for some or all of the work he has allowed, he may allow such amounts as appear to him to be reasonable remuneration for the relevant work."

20. Schedule 1 thus provided for payment to instructed advocates by two means, namely:-

i) Paragraph 15(2) and (3) provided for payment of a graduated or fixed fee in relation to proceedings specified in paragraphs 2 and 3 of Schedule 4, save where it appeared to the appropriate officer that the fixed fee allowed in respect of proceedings specified in paragraph 3 of Schedule 4 (appeals against conviction or sentence, committals for sentence, and proceedings arising out of the alleged breach of an order of the Crown Court) would be inappropriate, in which case under paragraph 15(4) he could instead allow fees in accordance with paragraphs 15(5) and (6).

ii) Paragraphs 15(5) & (6) provided for payment of such fees as were considered reasonable, except in relation to work for which a graduated or fixed fee was allowed under paragraph 15(2). The amount of such payment was to be determined ex post facto in accordance with Schedule 3, or (if there were exceptional circumstances and the amount payable under Part 2 of Schedule 3 would not provide reasonable remuneration) was to be in such amount as appeared to the Determining Officer to be reasonable remuneration for the relevant work.

21. As indicated above, Schedule 4 dealt with graduated and fixed fees for advocacy in the Crown Court. Paragraph 1 in Part 1 of Schedule 4 set out the definitions applicable to that Schedule, including (my emphasis):-

"(1) In this Schedule…….

'case' means proceedings in the Crown Court against any one assisted person:

(a) on one or more counts of a single indictment;

(b) arising out of a single notice of appeal against conviction or sentence or a single committal for sentence, whether on one or more charges; or

(c) arising out of a single alleged breach of an Order of the Crown Court

and a case falling within paragraph (c) shall be treated as a separate case from the proceedings in which the order was made…".

22. The qualifying criteria for a case to come within the graduated or fixed fee payment scheme were set out in paragraphs 2-5 of the Schedule. Paragraph 6 identified the classes of work for which graduated or fixed fees should be allowed. The most significant aspects, for present purposes, of these paragraphs were as follows (my emphasis):-

"2(1) Subject to the following sub-paragraphs of this paragraph and to paragraph 4, this Schedule applies to every case on indictment in which:

(a) every count (apart from any count which is withdrawn before the pleas and directions hearing) is for an offence referred to in paragraph 5 below; or

(b) one or more counts is for an offence referred to in paragraph 5 below, and the trial advocate elects that the remaining counts should be disregarded for the purposes of calculating his remuneration.

3. This Schedule also applies to the following proceedings in the Crown Court, subject to paragraph 4:

(a) an appeal against conviction or sentence;

(b) a sentence hearing following a committal for sentence to the Crown Court;

(c) proceedings arising out of an alleged breach of an order of the Crown Court (whether or not this Schedule applies to the proceedings in which the order was made)."

23. It should thus be noted that, with the exception of appeals, committals for sentence and alleged breaches of Crown Court orders, the word "case" is given the specific meaning of (my emphasis) "proceedings in the Crown Court against any one assisted person…on one or more counts of a single indictment." Whilst there is no definition of the phrase "a case on indictment" as such in paragraph 1(1), the definition of the word "case" must apply, and thus (on the face of the Order) the phrase "a case on indictment" is effectively a shortened version of "proceedings in the Crown Court….on one or more counts of a single indictment". The other references in Schedule 4 to a "case on indictment" in paragraphs 2(6) (Newton hearing), 2(7) (discontinuance at the pleas and directions hearing), 9(3)-9(5) (graduated fees for guilty pleas and cracked trials), 18(2) (wasted preparation fee), 19(2) (discs, tapes and videos) and 24(1) (two advocates) are all consistent with that approach. It should also be noted that there is no specific reference to preliminary hearings in the 2001 Order.
24. Paragraphs 11(1) and 16 of Schedule 4 were of some significance in the decision in Smith. They provided as follows:-

"11(1) The basic fee payable for any person for appearing at a directions hearing that was listed as a plea and directions hearing or a pre-trial review shall be that set out in the Table following paragraph 22 as appropriate to the category of the trial advocate but where a fee is also payable under sub-paragraph (2) an amount equal to that fee shall be deducted from the fee payable under this sub-paragraph.

……………

16 A fee under this paragraph, of the amount set out in the Table following paragraph 22 as appropriate to the category of the person appearing shall be payable to any person (whether the trial advocate or not) for appearing in the following hearings in a case on indictment. When not forming part of the main hearing or a hearing for which a fixed fee is provided elsewhere in this Schedule:

(a) the hearing of a case listed for plea which is adjourned for trial;

(b) any hearing (other than a trial) which is listed but cannot proceed because of the failure of the assisted person or a witness to attend, the unavailability of a pre-sentence report or other good reason;

(c) bail, custody time limits and other applications; and

(d) the trial of the case listed for mention only including applications relating to the date of trial."

R v Smith

25. The Appellant Solicitors claimed an ex post facto fee for advocacy on behalf of a defendant at a preliminary hearing that took place when no indictment was in existence, but were allowed only a graduated (fixed) fee. The reasons for that decision appear to have included the following:-

i) Cases sent for trial under s.51 of the 1998 Act were triable on indictment. The claim for costs could only be determined at the end of the proceedings, and the process therefore involved having to wait until the end of the case and then tracking back. Thus if, in the end, the case qualified for graduated fees, all fees (including those payable for preliminary hearings) would be caught by the graduated fees scheme, save where the main hearing took place before the plea and directions hearing. Ex post facto payment was only appropriate where a preliminary hearing was discontinued, or where the defendant died after committal, or died after sending (but before the plea and directions hearing).

ii) In a graduated fee case it would be illogical and against the spirit and intention of the Order to ring fence preliminary hearings, and for the remuneration for such hearings to be paid ex post facto.

iii) Payment of the fee for a preliminary hearing was fixed in the sum of £46.50 because it came within paragraph 16(c) (other applications) or 16(d) (applications relating to the date of trial) of Schedule 4, rather than coming within paragraph 11 of Schedule 4 (plea and directions hearings, or pre trial reviews).

26. There was an appeal from the Determining Officer to Costs Judge Campbell. It was argued on behalf of the Appellant that:-

i) Given the time limit of 42 days after the case has been sent to the Crown Court for service of the evidence, an indictment would not have been preferred by the time of any preliminary hearing.

ii) Part 1 of Schedule 4 of the Order applied (subject to certain exceptions) to every case on indictment, where "case" meant "proceedings in the Crown Court against any one assisted person… on one or more counts of a single indictment".

iii) Given that it was common ground that, at the time of the relevant preliminary hearing, no indictment had been signed, the fee claimed thus fell outwith Schedule 4 and the graduated fee scheme, and had to be determined ex post facto – in accordance with paragraphs 15(5) and (6) of Schedule 1 and Schedule 3.

iv) The Determining Officer's view that once a case qualified for graduated fees all earlier hearings fell within the graduated fees net was wrong because:-

(a) The definition of "case" in Part 1 of Schedule 4 to the Order did not extend to or include preliminary hearings.

(b) The Order did not contain any specific reference to preliminary hearings being included in the graduated fee scheme, whereas it would have been simple to include them if that had been the intention.

(c) It was common ground that if there never was an indictment (e.g. because the case was sent back to the Magistrates' Court) the claim would be dealt with ex post facto. In those circumstances, there was nothing inconsistent or against the spirit of the Order if a preliminary hearing was dealt with on the same basis when there was no indictment.

v) Even if a preliminary hearing fell within the graduated fee scheme, the amount awarded should be £100 under paragraph 11 of Schedule 4, not £46.50 under paragraph 16.

27. Costs Judge Campbell's reasons for agreeing with these submissions were as follows:-

"Although s51 CDA was implemented before the Order was brought into force, it is common ground that within the body of the Order "preliminary hearings" are not specified or defined, even though the Act is expressly referred to in the Order. As the regional Taxing manager observed in his written reasons:

…to specify preliminary hearings within the body of the Funding Order would have brought greater clarity to the issue between us."

Unfortunately the absence of any definition or specification has left the matter open. In the view of the Determining Officer, a claim for costs can only be determined after the conclusion of "the case" – (viz proceedings against an assisted person on indictment). If the proceedings end in an indictment which does not fall within the exceptions (eg trial exceeding 25 days) then the graduated fee net captures all hearings, including any preliminary hearings under s51 which took place before there was an indictment. In other words, you cannot have a case that is part graduated fee and part ex-post facto; that would simply be illogical; you have to wait until the end of the case and track back.

Whilst I see the force of the Determining Officer's argument, in my judgment his reasoning is flawed, because the Order does not say this. On the contrary, for the claim to come within the graduated (fixed) fee scheme there must be an indictment (see Schedule 4, Part 1, paragraph 1). However, at the s51 preliminary hearing it is unlikely that there will be an indictment and the possibility that there may be an indictment in the future is insufficient, in my view, to make the case retrospectively indictable at the s51 CDA stage. Moreover, there is nothing in the Order to which my attention was drawn which prohibits two different types of claim being submitted in the same proceedings. The most that the Determining Officer can argue in this respect is that to pay s51 CDA claims ex-post facto would be against the spirit, intention and wording of the Order. I have already said why I consider the wording of the Order does not cover this situation. Absent specific wording, in my judgment, the Determining Officer cannot adjudicate claims on the basis of what he believed the draftsman intended or because he considers to do so would be illogical. The CDA was implemented before the Order came into force, and in these circumstances, I consider the draftsman of the Order could have expressly included preliminary hearings within the graduated fee scheme. It is common ground that he did not. For these reasons I consider the Determining Officer reached the wrong conclusion and ought to have determined the claim ex-post facto not on the basis of a graduated fee. The appeal is allowed and the claim must therefore be returned to him for determination.

This ruling disposes of the appeal, but in case this matter goes further, I need to deal with Mr Edward's subsidiary submission – whether the Determining Officer was correct to allow a fee of £46.50 payable under paragraph 16 of Part 2 to Schedule 4 or whether he should have allowed £100 under paragraph 11. The Determining Officer's view was that "other applications" and/or "including applications relating to the date of trial" cover "preliminary hearings" under s51. Mr Edwards has persuaded me that that view is incorrect. In my opinion, "applications" necessarily involve a request being made to the court. A preliminary hearing does not and is more akin to a pre-trial review. It follows that in my judgment a preliminary hearing under s51 bears a significant similarity to a pre-trial review under paragraph 11. It follows that if I have reached the wrong conclusion so far as the first limb of this appeal is concerned, I would allow a fee of £100 under paragraph 11 of Part 2 to Schedule 4 rather than the sum of £46.50 as determined by the Determining Officer."

28. Thus it is clear that Costs Judge Campbell rejected the Determining Officer's central arguments that it was not possible for a case to be part graduated fee and part ex post facto assessment, and that what was therefore required was to wait until the end of the case and then to track back. Instead, the learned Costs Judge concluded that the fee for the preliminary hearing should be determined on an ex post facto basis in accordance with paragraph 15(5) of Schedule 1 and Schedule 3. He reached that conclusion upon the basis that:-

i) The wording of the Order did not permit the back tracking approach to the determination of fees urged on behalf of the Determining Officer.

ii) The definition in paragraph 1(1) in Part 1 of Schedule 4, combined with the qualifying criteria for the Graduated Fee Scheme set out in paragraph 2(1) in Part 1 of Schedule 4, made clear that in order for an appearance at a preliminary hearing to come within the Graduated Fee Scheme there had to be an indictment in existence.

iii) It would have been easy to make specific provision about preliminary hearings within the terms of the Order, but this had not been done.

iv) There was nothing in the Order to prevent two different types of payment claim in the one case.

29. Thereafter, the ex post facto payment of fees for the attendance of instructed advocates at preliminary hearings became the norm under the 2001 Order.

The 2007 Order.

30. As indicated above, the 2007 Order (from which VHCC cases were excluded) came into force on 30 April 2007. At the time of the events with which this appeal is concerned, section 51 of the 1998 Act, supplemented (in so far as they were in force) by sections 50A-51E, governed the sending of cases from the Magistrates' Court to the Crown Court. The 2005 Regulations required the service of the evidence on the defendant and the court to be effected, subject to any application to extend time, within 50 days of the sending if the defendant was in custody, and within 70 days if the defendant was on bail. Paragraph 12.2 of the Criminal Procedure Rules 2005 dealt with the listing of preliminary hearings. As before, Paragraph 2 of Schedule 3 to the 1998 Act governed applications for dismissal, which could be made whether or not an indictment had been preferred.
31. Section 14 of the 1999 Act (see paragraph 17 above), as by then amended, continued in force. Section 18 of the 1999 Act, as amended, and which is relied upon by the Respondent, provided that:-

"(1) The Lord Chancellor shall pay to the Commission such sums as are required to meet the costs of any advice, assistance and representation funded by the Commission as part of the Criminal Defence Service.

(2) The Lord Chancellor may –

(a) determine the manner in which and times at which the sums referred to in subsection (1) shall be paid to the Commission, and

(b) impose conditions on the payment of the sums

(3) In funding services as part of the Criminal Defence Service the Commission shall aim to obtain the best possible value for money."

32. As is well known, the 2007 Order resulted from changes to the Crown Court AGFS recommended by Lord Carter of Coles in his review of legal aid procurement.
33. The most striking feature, for present purposes, is that the 2007 Order only makes provision for the payment of graduated or fixed fees. Subject to one exception, there is no provision for the payment of any other type of fee. In particular, there is no equivalent of the ex post facto payment provisions contained in paragraphs 15(5) and (6) of Schedule 1 and Schedule 3 to the 2001 Order. The exception is the discretion given to appropriate officers in relation to the payment of fees is in connection with appeals, committals for sentence and breach hearings where, under the provisions of paragraphs 17(4) & (5) in Part 4 of Schedule 1, an amount appearing to be reasonable remuneration may be paid if it appears that the otherwise requisite fixed fee would be inappropriate.
34. Articles 4 & 5 of the 2007 Order provide as follows:-

"4(1) where a representation order is granted on or after 30^th April 2007 for proceedings in the Crown Court or the Court of Appeal –

(a) the Commission must fund representation in accordance with its duty under section 14(1) of the Act; and

(b) the provisions of this Order apply…

5(1) Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to this Order….."

35. Paragraph 1(1) of Schedule 1 sets out the definitions applicable to the Schedule, as follows (my emphasis):-

"In this Schedule

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

(a) on one or more counts of a single indictment;

(b) arising out of a single notice of appeal against conviction or sentence, or a single committal for sentence, whether on one or more charges; or

(c) arising out of a single alleged breach of an order of the Crown Court,

and a case falling within paragraph (c) must be treated as a separate case from the proceedings in which the order was made;

"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;

"main hearing" means—

(a) in relation to a case which goes to trial, the trial;

(b) in relation to a guilty plea, the hearing at which pleas are taken or, where there is more than one such hearing, the last such hearing;

(c) in relation to a cracked trial, the hearing at which—

(i) the case becomes a cracked trial by meeting the conditions in the definition of a cracked trial, whether or not any pleas were taken at that hearing; or

(ii) a formal verdict of not guilty was entered as a result of the prosecution offering no evidence, whether or not the parties attended the hearing;

(d) in relation to an appeal against conviction or sentence in the Crown Court, the hearing of the appeal;

(e) in relation to proceedings arising out of a committal for sentence in the Crown Court, the sentencing hearing; and

(f) in relation to proceedings arising out of an alleged breach of an order of the Crown Court, the hearing at which those proceedings are determined;

"Newton Hearing" means a hearing at which evidence is heard for the purpose of determining the sentence of a convicted person in accordance with the principles of R v Newton (1982) 77 Cr App R 13;

"standard appearance" means an appearance by the trial advocate or substitute advocate in any of the following hearings which do not form part of the main hearing—

(a) a plea and case management hearing, except the first plea and case management hearing;

(b) a pre-trial review;

(c) the hearing of a case listed for plea which is adjourned for trial;

(d) any hearing (except a trial, a plea and case management hearing, a pre-trial review or a hearing referred to in paragraph 2(1)(b)) which is listed but cannot proceed because of the failure of the assisted person or a witness to attend, the unavailability of a pre-sentence report or other good reason;

(e) custody time limit applications;

(f) bail and other applications (except where any such applications take place in the course of a hearing referred to in paragraph 2(1)(b)); or

(g) the hearing of the case listed for mention only, including applications relating to the date of the trial (except where an application takes place in the course of a hearing referred to in paragraph 2(1)(b)),

provided that a fee is not payable elsewhere under this Schedule in respect of the hearing;

"substitute advocate" means an advocate who is not an instructed advocate or the trial advocate but who undertakes work on the case; and

"trial advocate" means an advocate instructed in accordance with a representation order to represent the assisted person at the main hearing in any case, including a QC or a leading junior advocate so instructed after the hearing at which pleas are taken".

36. Paragraphs 2 and 3 of Schedule 1 set out the qualifying criteria for a case to come within the AGFS. The relevant aspects are in the following terms (my emphasis):-

"2(1) Subject to sub-paragraphs (2) to (8), this Schedule applies to—

(a) every case on indictment; and

(b) the following proceedings in the Crown Court—

(i) an appeal against conviction or sentence;

(ii) a sentencing hearing following a committal for sentence to the Crown Court; and

(iii) proceedings arising out of an alleged breach of an order of the Crown Court (whether or not this Schedule applies to the proceedings in which the order was made).

(2) This Schedule does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.

(3) Sub-paragraph (4) applies where, following a trial, an order is made for a new trial and the same trial advocate appears at both trials where—

(i) the defendant is an assisted person at both trials; or

(ii) the defendant is an assisted person at the new trial only; or

(iii) the new trial is a cracked trial or guilty plea.

(4) In respect of a new trial, or if he so elects, in respect of the first trial, the trial advocate will receive a graduated fee calculated in accordance with Part 2 or Part 3, as appropriate, except that the fee will be reduced by—

(a) 30 percent, where the new trial started within one month of the conclusion of the first trial;

(b) 20 percent, where the new trial did not start within one month of the conclusion of the first trial;

(c) 40 percent where the new trial becomes a cracked trial or guilty plea within one month of the conclusion of the first trial; or

(d) 25 percent where the new trial becomes a cracked trial or guilty plea more than one month after the conclusion of the first trial.

(5) Where a different trial advocate appears for the assisted person at each trial then, in respect of each trial, the trial advocate will receive a graduated fee calculated in accordance with Part 2 or Part 3, as appropriate.

(6) Where following a case on indictment a Newton hearing takes place—

(a) for the purposes of this Schedule the case will be treated as having gone to trial;

(b) the length of the trial will be taken to be the combined length of the main hearing and the Newton hearing;

(c) the provisions of this Schedule relating to cracked trials and guilty pleas will not apply; and

(d) no fee will be payable under paragraph 12 in respect of the Newton hearing.

(7) Sub-paragraph (8) applies where proceedings are—

(a) sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences); or

(b) transferred to the Crown Court under—

(i) section 4 of the Criminal Justice Act 1987 (transfer of serious fraud cases); or

(ii) section 53 of the Criminal Justice Act 1991 (transfer of certain cases involving children).

(8) Where, at any time after proceedings are sent or transferred to the Crown Court under the provisions referred to in sub-paragraph (7), they are—

(a) discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985 (discontinuance of proceedings after accused has been sent for trial); or

(b) dismissed pursuant to—

(i) paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (applications for dismissal);

(ii) section 6 of the Criminal Justice Act 1987 (applications for dismissal); or

(iii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (applications for dismissal),

the provisions of paragraph 18 apply.

3(1) For the purposes of this Schedule— ……..

(f) where in a case on indictment there is a hearing to determine the question of whether an assisted person is unfit to plead or unfit to stand trial, the trial advocate must elect whether that hearing falls within the same Class as the indictable offence to which it relates or within Class D; and

(g) where in a case on indictment a restriction order is made under section 41 of the Mental Health Act 1983 (power of higher courts to restrict discharge from hospital), the offence falls within Class A, regardless of the Class under which the offence would be listed in the Table of Offences but for this paragraph".

37. It should therefore be noted that:-

i) With the exception of appeals, committals for sentence and alleged breaches of Crown Court orders, and as in the 2001 Order, the word "case" is given the specific meaning of (my emphasis) "proceedings in the Crown Court against any one assisted person…on one or more counts of a single indictment".

ii) Whilst there is no definition of the phrase "a case on indictment" as such in paragraph 1(1), the definition of the word "case" in paragraph 1(1) must apply, and thus (on the face of the Order) the phrase "a case on indictment" is (again) effectively a shortened version of "proceedings in the Crown Court….on one or more counts of a single indictment", and in the extracts cited above makes sense if so construed.

iii) Thus, that is the meaning which (on the face of it) must be applied to the phrase "every case on indictment" in paragraph 2(1)(a).

iv) That is made subject to sub-paragraphs (2)-(8) of paragraph 2, and thus by virtue of sub-paragraphs (7)&(8) payment in relation to the discontinuance or dismissal of proceedings sent under s.51 of the 1998 Act, or transferred under the Criminal Justice Acts of 1987 & 1991, is specifically included within the AGFS under the provisions of paragraph 18 of Part 4 of Schedule 1.

v) There is no reference to preliminary hearings in the definition of standard appearance in paragraph 1(1), nor (in fact) in any other part of the Order.

38. Parts 2 & 3 of Schedule 1 deal with the calculation of graduated fees in respect of trials, guilty pleas and cracked trials. Paragraphs 8-19 in Part 4 of Schedule 1 set out the circumstances in which fixed fees are payable. Paragraph 8 (which is relied upon by the Appellant) provides as follows:-

"Except as provided under this Part, all work undertaken by an advocate is included within the basic fee (B) specified in the Table following paragraph 5 as appropriate to—

(a) the offence for which the assisted person is tried;

(b) the category of advocate; and

(c) whether the case is a cracked trial, guilty plea or trial."

39. It should be noted that the purpose of paragraph 8 is clearly not to prescribe what work comes within Schedule 1, because that is dealt with by the qualifying criteria in paragraph 2. It is only once the qualifying criteria have been met that paragraph 8 prescribes what work is to be included within the basic fee on the one hand, and what work is to be remunerated in accordance with paragraphs 9-19 on the other hand.
40. Paragraph 9 of Part 4 of Schedule 1 deals with fees for plea and case management hearings and standard appearances, and is in the following terms:-

"(1) The fee payable in respect of—

(a) an appearance by the trial advocate or substitute advocate at the first plea and case management hearing or pre-trial review; and

(b) up to four standard appearances by the trial advocate or substitute advocate,

is included within the basic fee (B) specified in paragraph 5 as appropriate to the offence for which the assisted person is tried and the category of trial advocate.

(2) The fee payable in respect of an appearance by the trial advocate or substitute advocate at a plea and case management hearing or standard appearance not included in sub-paragraph (1) is specified in the Table following paragraph 19 as appropriate to the category of trial advocate or substitute advocate.

(3) The fee payable for preparing and filing the plea and case management questionnaire where no oral hearing takes place is specified in the Table following paragraph 19 as appropriate to the category of trial advocate or substitute advocate.

(4)  This paragraph does not apply to a standard appearance which is or forms part of the main hearing in a case or to a hearing for which a fee is payable elsewhere under this Schedule."

41. Paragraphs 10-15 of Part 4 of Schedule 1 deal respectively with fees for abuse of process, disclosure, admissibility and withdrawal of plea hearings (paragraph 10); confiscation hearings (paragraph 11); sentencing hearings (paragraph12); ineffective trials (paragraph 13); special preparation (paragraph 14); and wasted preparation (paragraph 15). The phrase "case on indictment" is to be found in paragraphs 10(1)(a), 10(2), 12(1)(a), 12(1)(b), 14(1) and 15(2). Again, the meaning of the phrase is (on the face of it) in accordance with being a shortened version of "proceedings in the Crown Court….on one or more counts of a single indictment".
42. Paragraph 16 deals with fees for conferences and views, and is therefore of some significance. It provides as follows:-

"(1) This paragraph applies to the following types of work—

(a) attendance by the trial advocate at pre-trial conferences with prospective or actual expert witnesses not held at court;

(b) attendance by the trial advocate at views at the scene of the alleged offence;

(c) attendance by the trial advocate at pre-trial conferences with the assisted person not held at court;

(d) reasonable travelling time by the trial advocate for the purpose of attending a view at the scene of the alleged offence; or

(e) reasonable travelling time by the trial advocate for the purpose of attending a pre-trial conference with the assisted person or prospective or actual expert witness, where the appropriate officer is satisfied that the assisted person or prospective or actual expert witness was unable or could not reasonably have been expected to attend a conference at the trial advocate's chambers or office.

(2) The fees payable in respect of attendance at the first three pre-trial conferences or views, as set out in sub-paragraph (1)(a) to (c), are included in the basic fee (B) specified in the Table following paragraph 5 or paragraph 7, as appropriate to the offence for which the assisted person is tried, the category of trial advocate and whether the case is a guilty plea, cracked trial or trial, provided that the trial advocate satisfies the appropriate officer that the work was reasonably necessary…….."

43. As indicated above, paragraph 17 makes provision for fees in relation to appeals, committals for sentence and breach hearings, including (when appropriate) the assessment of reasonable remuneration. It is in the following terms

"(1) Subject to sub-paragraphs (4) and (5) and paragraph 21 the fee payable to a trial advocate in any of the hearings referred to in paragraph 2(1)(b) is the fixed fee specified in the Table following paragraph 19.

(2) Where a hearing referred to in paragraph 2(1)(b) is listed but cannot proceed because of the failure of the assisted person or a witness to attend, the unavailability of a pre-sentence report, or other good reason, the fee payable to the advocate is the fixed fee specified in the Table following paragraph 19.

(3) Where—

(a) a bail application;

(b) a mention hearing; or

(c) any other application

takes place in the course of a hearing referred to in paragraph 2(1)(b), the fee payable to the advocate is the fixed fee specified in the Table following paragraph 19.

(4) Where it appears to the appropriate officer that the fixed fee allowed under sub-paragraph (1) would be inappropriate taking into account all of the relevant circumstances of the case he may instead allow fees in such amounts as appear to him to be reasonable remuneration for the relevant work in accordance with sub-paragraph (5).

(5) The appropriate officer may allow any of the following classes of fees to an advocate in respect of work allowed by him under this paragraph—

(a) a fee for preparation including, where appropriate, the first day of the hearing including, where they took place on that day—

(i) short conferences;

(ii) consultations;

(iii) applications and appearances (including bail applications);

(iv) views at the scene of the alleged offence; and

(v) any other preparation;

(b) a refresher fee for any day or part of a day for which a hearing continued, including, where they took place on that day—

(i) short conferences;

(ii) consultations;

(iii) applications and appearances (including bail applications);

(iv) views at the scene of the alleged offence; and

(v) any other preparation; and

(c) subsidiary fees for—

(i) attendance at conferences, consultations and views at the scene of the alleged offence not covered by paragraph (a) or (b);

(ii) written advice on evidence, plea, appeal, case stated or other written work; and

(iii) attendance at applications and appearances (including bail applications and adjournments for sentence) not covered by paragraph (a) or (b)."

44. As indicated above, paragraph 18 deals with the discontinuance or dismissal of sent or transferred proceedings. It will be recalled that remuneration in this regard comes within the AGFS because of specific provision being made in the qualifying criteria – see paragraph 2(1), (7)&(8) of Schedule 1. Paragraph 18 is in the following terms:-

"(1) This paragraph applies to proceedings which are—

(a) sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences); or

(b) transferred to the Crown Court under—

(i) section 4 of the Criminal Justice Act 1987 (transfer of serious fraud cases); or

(ii) section 53 of the Criminal Justice Act 1991 (transfer of certain cases involving children).

(2) Where proceedings referred to in sub-paragraph (1) are discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985 (discontinuance of proceedings after accused has been sent for trial) at any time before the prosecution serves its evidence in accordance with the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005 the advocate must be paid 50 percent of the Basic fee (B) for a guilty plea, as specified in the Table following paragraph 7 as appropriate to the offence for which the assisted person is charged and the category of advocate.

(3) Where proceedings referred to in sub-paragraph (1) are discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985 (discontinuance of proceedings after accused has been sent for trial) at any time after the prosecution serves its evidence in accordance with the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005, the advocate must be paid a graduated fee calculated in accordance with paragraph 6, as appropriate for representing an assisted person in a guilty plea.

(4) Where, at the plea and case management hearing or any other hearing after the prosecution serves its evidence,—

(a) the prosecution offers no evidence and the assisted person is discharged; or

(b) the assisted person is charged on an indictment which includes no offence that is triable only on indictment and the case is remitted to the magistrates' court in accordance with paragraph 10(3)(a) of Schedule 3 to the Crime and Disorder Act 1998 (procedure where no indictable-only offence remains),

the advocate instructed in the proceedings must be paid a graduated fee calculated in accordance with paragraph 6, as appropriate for representing an assisted person in a guilty plea.

(5) Where an application for dismissal is made under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (applications for dismissal), section 6 of the Criminal Justice Act 1987 (applications for dismissal) or paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (applications for dismissal), the advocate must be remunerated for attendance at the hearing of the application for dismissal—

(a) in respect of any day where the hearing begins before and ends after the luncheon adjournment, at the daily rate set out in the Table following paragraph 19 as appropriate to the category of advocate; or

(b) in respect of any day where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, at the half-daily rate set out in that Table as appropriate to the category of advocate,

provided that a fee is not payable elsewhere under this Schedule in respect of any day of the hearing.

(6) Where an application for dismissal is made under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998, section 6 of the Criminal Justice Act 1987 or paragraph 5 of Schedule 6 to the Criminal Justice Act 1991, and—

(a) the charge, or charges, are dismissed and the assisted person is discharged; or

(b) the charge, or charges, of an offence triable only on indictment are dismissed and the case is remitted to the magistrates' court in accordance with paragraph 10(3)(a) of Schedule 3 to the Crime and Disorder Act 1998,

in respect of the first day of the hearing of the application to dismiss, the advocate instructed in the proceedings must be paid a graduated fee calculated in accordance with paragraph 6, as appropriate for representing an assisted person in a guilty plea.

(7) Where an advocate represents more than one assisted person in proceedings referred to in sub-paragraph (1), the advocate must be paid a fixed fee of 20 percent of —

(a) the fee specified in sub-paragraph (2) where that sub-paragraph applies; or

(b) the Basic fee (B) specified in the Table following paragraph 7 where sub-paragraph (3), (4) or (5) applies, as appropriate for the circumstances set out in the relevant sub-paragraph,

in respect of each additional assisted person he represents."

45. It will be observed that paragraph 18(2) deals with the situation where a case has been sent for trial, but is discontinued before the prosecution has served its evidence, and therefore (in all probability) after a preliminary hearing but before an indictment has been signed. In that situation, attendance at the preliminary hearing will (by implication) be remunerated as part of the payment of 50% of the basic fee for a guilty plea. Likewise, if paragraph 18(3) applies, and there has been attendance at a preliminary hearing, that work will also (by implication) be remunerated as part of the payment of a graduated fee as appropriate for a guilty plea, whether or not an indictment has been signed. Likewise in relation to paragraph 18(6), given that a successful dismissal application may have been made absent an indictment having been signed – see paragraph 2(1) of Schedule 3 to the 1998 Act.

The decision of Costs Judge Rogers.

46. The Determining Officer relied on the Graduated Fee Scheme Guidance at paragraphs B7 and F3 in reaching her conclusion that the fees sought by the Respondent were included within the basic fee. Those paragraphs provide as follows:-

"B7

The basic Fee covers all preparation (including listening to taped evidence), the Section 51 hearings, the first PCMH, the first three conferences or views and the first two days of trial………

F3

In a case where the main hearing took place before the indictment is signed (i.e. a case that is discontinued or otherwise disposed of before the prosecution has served its case in accordance with the Crime and Disorder Act (Service of Prosecution) Evidence Regulation 2005) a fee of 50% of the basic fee element for a guilty plea/cracked trial in the first third is paid appropriate to the offence group and the category of the advocacy."

47. The Respondent argued that the Guidance upon which the Determining Officer had based her decision was wrong in law. In support of this argument he relied, inter alia, upon the decision of Costs Judge Campbell in R v Smith. The Respondent further asserted that no change had taken place in any of the circumstances that had given rise to that decision. He relied upon the continued use of the wording "every case on indictment"; the fact that following the decision in Smith nothing had been done in the Criminal Defence Service (Funding) (Amendment) Order 2005 to change the position; the fact that if any change of meaning from that attributed to the words in Smith was intended a simple formula such as "every case in the Crown Court sent for trial under section 51 of the Crime and Disorder Act 1998 and committed for trial under section 6 of the Magistrates' Court Act 1980" could have been used; the fact that it was always open to the Respondent to accelerate the signing of the indictment, and that it followed that if a notice of discontinuance was issued before an indictment was signed the special fee arrangements in paragraph 18(2) of Part 4 of Schedule 1 were not engaged.
48. In his judgment, Costs Judge Rogers set out the reasoning and conclusion of the Determining Officer and then continued:-

"10. However as Counsel convincingly points out in his detailed objections, the 2007 Funding Order in this respect is in identical terms to that of the 2001 Funding Order.

11. He contends that if the Department of Constitutional Affairs (as it then was, now the Ministry of Justice) had been dissatisfied with the decision of Master Campbell in R v Smith handed down in March 2004 it was open to them, without permission, to appeal the matter to a High Court Judge, but they did not do so.

12. However, they had the opportunity when the 2007 Funding Order was being drafted to have amended the wording from the 2001 Funding Order to make it quite clear that these hearings should be remunerated under the graduated fee scheme only.

13. In paragraph 4(f) of his Notice of Appeal, Counsel helpfully provides the wording which could have been used:

"For example, it could have with ease and simplicity drafted formulae to replace the old 2001 paragraph 2(1) (definition) referring to "every case on indictment" such as "every case in the Crown Court sent for trial under the Crime and Disorder Act 1998 section 51 or committed for trial under the Magistrates' Court Act 1980 section 6".

14. The graduated fee scheme guidance is merely that and in this case I regret to say, in my view, is inaccurate and ought to be amended.

15. On the plain wording of the 2007 Funding Order claims such as this still fall to be remunerated on an ex-post facto basis.

16. The sums claimed in this case are perfectly reasonable and, accordingly this appeal is allowed in full."

Discussion.

49. In my view there can be no doubt that the 2001 Order and the 2007 Order are significantly different. Unlike the 2001 Order, the only provision in the 2007 Order for the ex post facto assessment and payment of reasonable remuneration is that provided by paragraph 17(4)&(5) in relation to appeals, committals for sentence and breach hearings. Thus Costs Judge Rogers had no power under the 2007 Order itself to remunerate the work on an ex post facto basis. Nor can the Respondent's reliance on s.18 of the 1999 Act assist him in this regard, as the Appellant is only required to pay such costs as are funded by the Commission which, in turn, is only liable to make payments in accordance with the provisions of the 2007 Order.
50. However, the fact that there is no power to make an ex post facto award in relation to preliminary hearings and associated conferences cannot, in itself, be decisive of the issue as to whether remuneration for such work is covered by the basic fee, whether or not an indictment was in existence at the time that the work was done. The answer to that question must lie in the qualifying criteria for the AGFS as set out in paragraph 2 in Part 1 of Schedule 1 - hence the concentration, in the argument before me, upon the true construction of the phrase "every case on indictment" in paragraph 2(1)(a).
51. I propose to deal first with preliminary hearings, in what is likely to be the typical situation of there being no indictment at the time of such a hearing. Mr Nicholls has not sought to resurrect the "tracking back" argument advanced in Smith rather, as indicated above, he submits that the phrase "every case on indictment" should be purposively construed as meaning "every case to be tried on indictment" (which every case is at the preliminary hearing stage). Mr Nicholls relies on the absence of any power to make an ex post facto payment in respect of such a hearing. The other significant argument that Mr Nicholls advances is that if there is an indictment in existence at the time of the preliminary hearing then the hearing will, on any view, come within the qualifying criteria, and that therefore (by virtue of paragraph 8 in Part 4 of Schedule 1) remuneration for the hearing will be within the basic fee, and that (unless his construction is adopted) there would thus (if the Respondent is right) be an illogical difference of approach which would depend on the fortuity of whether or not an indictment had been signed. I am not impressed by Mr Nicholls' assertion that paragraph 8 in itself supports his purposive argument. That is because paragraph 8 only comes into play once a case is within the qualifying criteria in paragraph 2. Nor am I impressed by his reliance, in this context, on paragraphs 2(7)&(8) in Part 1 of Schedule1 and on paragraph 18 in Part 4 of Schedule 1. Rather the reverse. It seems to me that paragraphs 2(7)&(8) create specific exceptions to the application of paragraph 2(1)(a), and to be given any meaning or purpose they have to be adding to the cases otherwise covered by the phrase "every case on indictment", which they only need to do if the cases to which they apply are not otherwise, or may not be, cases "on indictment". Paragraphs 2(7)&(8) thus make specific (albeit implicit) provision in relation to preliminary hearings, with or without an indictment, in the situations in which they apply.
52. It seems to me that the crucial problem with Mr Nicholls' arguments is that they cannot overcome the specific definition of the word "case" in paragraph 1(1)(a) in Part 1 of Schedule 1, which is that it means "proceedings in the Crown Court…..on one or more counts of a single indictment". That definition applies throughout Schedule 1. As I have indicated in paragraph 37 (above), when the specific definition of "case" is applied to the phrase "every case on indictment" in paragraph 2(1)(a) in Part 1 of Schedule 1 it becomes clear that the phrase "every case on indictment" is effectively a shortened version of "proceedings in the Crown Court…..on one or more counts of a single indictment". That meaning makes sense in each instance in which the phrase appears in Schedule 1. It follows that Mr Nicholls' invitation to construe the phrase "every case on indictment" as meaning "every case to be tried on indictment" is, in reality, an invitation to redraft the Order. As the Respondent points out, there is a substantial body of authority that establishes that, generally speaking, this is not permissible as there is no equity in Regulations dealing with Graduated Fee Schemes, which are mechanistic and formulaic, and must be construed as they stand. Equally, given the clarity of the specific definition, this is not, in my judgement, a case in which it would be right to exercise the court's power to add, omit or substitute words in secondary legislation in order to correct an obvious drafting error. Accordingly it seems to me that, notwithstanding the differences between the 2001 Order and the 2007 Order, both Costs Judge Campbell in Smith, and Costs Judge Rogers in this case, were right to conclude that, for a preliminary hearing to come within the qualifying criteria for the AGFS in each Order, there had or has to be an indictment in existence at the time of the hearing. I therefore reject the construction of the phrase "every case on indictment" for which Mr Nicholls contends.
53. As the Respondent has rightly pointed out, it would have been simple for the 2007 Order to have been drafted in a way (perhaps along the lines that he suggested) which overcame the problem highlighted by this case. The problem is that if a preliminary hearing takes place when there is no indictment there is no provision in relation to remuneration (unless the case is discontinued or dismissed in circumstances caught by paragraph 18 in Part 4 of Schedule 1), but if there is an indictment in existence at the time (which will be the exception not the rule) remuneration will be within the basic fee (in accordance with paragraph 8 in Part 4 of Schedule 1). It is equally a strange feature of both Orders that there is no specific reference to preliminary hearings in either. Given the ever increasing importance of preliminary hearings in the case management of proceedings in the Crown Court it is, on the face of it, surprising that they do not even feature in the definition of a standard appearance. One is left with the impression, rightly or wrongly, that preliminary hearings did not feature in the thinking behind the drafting, or the passage, of the 2007 Order. Whatever the reason, this unsatisfactory state of affairs (which may have wider ramifications) can only be corrected, in whatever way is thought appropriate, by amendment of the Order, not by judicial interpretation.
54. In fact, the situation is much the same in relation to the conference held at court by the Respondent on the day of the preliminary hearing. As there was no indictment in existence at that time, the case did not come within the qualifying criteria of paragraph 2(1)(a) in Part 1 of Schedule 1, and thus was not caught by paragraph 8 in Part 4 of the Schedule. However, there was no mechanism, whether in the 2007 Order or otherwise, by which Costs Judge Rogers could make the order that he did for the ex post facto assessment and payment of remuneration in respect of that work. If an indictment had been in existence at the material time then, because the conference was not one of the types of conference mentioned in paragraph 16(1) in Part 4 of Schedule 1, it would (in accordance with paragraph 8 in Part 4 of Schedule 1) have fallen to be remunerated within the basic fee.
55. It follows that the position in relation to remuneration for conferences at court, on the occasion of a preliminary hearing when there is no indictment in existence, is also unsatisfactory. However, again, this can only be cured by amendment, not by judicial interpretation.

Conclusion.

56. In my judgement Costs Judge Rogers was right to conclude that the fees for the work fell outside the AGFS in Schedule 1 to the 2007 Order because there was no indictment in existence at the time that the work was done. However, he was wrong to conclude that he had the power to determine payment of the fees on an ex post facto basis, and thus was also wrong to assess the fees for the work and expenses in the total sum of £216.40. Therefore those parts of his ruling must be reversed, and I allow the appeal to that limited extent.
57. Given that the Appellant made clear during argument, inter alia, that he would not seek the return of the £216.40 from the Respondent, and that nor would he seek any costs order against him, it is not necessary to consider making any consequential orders in favour of the Appellant.
58. The current unsatisfactory situation can only be corrected by appropriate amendment of the 2007 Order.