Legal Aid Taxation in the Court of Appeal and House of Lords 1. The Bar Council has recently been engaged in discussions with the relevant authorities towards the provision of guidance in claims for and the determination of reasonable remuneration in legal aid cases in Court of Appeal or House of Lords. 2. The Bar is already committed to the presentation of claims at a level expected to be determined at or near to the amount claimed and to the principle that each claimant is prepared to justify any claim by appeal in the event of any significant disagreement by the determining officer. 3. The mutual agreed guidance that follows will, it is hoped, enhance this process. Should any individual have any difficulty in interpreting the guidance they are invited to contact Stephen Leslie QC (Member of the Remuneration Committee of the Bar Council) via Simon Garrod at the Bar Council, 289-293 High Holborn, London WC1V 7HZ. Tel 020 7242 0082. The Determination of Legal Aid Basic Fees in the Court of Appeal, Criminal Division 4. The following is a summary of the seminar given by The Court Service to the Bar on 15 March 1999 in respect only of Basic Fees in the Court of Appeal. 5. That seminar gave guidance to counsel and their clerks as to how best to make a realistic claim by providing an overview of how fees are assessed. 6. The Starting PointA reasonable amount for work reasonably done (Regulation 9(6) of the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989). Discretion as to what to allow is unfettered and there are no graduated or fixed fees. 7. A basic fee encompasses preparation and the first day of the hearing, including short conferences and consultations on that day (Regulation 9(4)(a)). It also includes the travelling time of provincial counsel. Sentence appeals - 90% of basic fees paid range from 250 to 750 Conviction appeals - 90% of basic fees paid range from 600 to 2000. 8. These figures apply to both Leading and Junior Counsel, but Leading Counsel are briefed in under 2% of Sentence appeals and under 10% of Conviction appeals. 1
The Relevant Factors Taken into Account in Assessing a Basic Fee 9. All the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved (Regulation 4(2)(a) and paragraph 1.11 of the Taxing Officers Notes for Guidance). 10. Examples of the relevant factors are provided overleaf but the more factors that are present and the greater the depth of these factors in the appeal, the higher the fee is likely to be. Making a Claim 11. Use the relevant factors to assess to relative weight of the appeal and incorporate them in a Case Assessment to accompany the claim. In general the higher the fee claimed the more detailed the assessment needs to be. Whilst there is no need to emphasise points weakening the case for a higher fee (eg. straightforward grounds, little preparation, short submission to the Court), be aware of them when deciding what fee to claim. 12. In multi-handed appeals consult with co-appellant counsel about the relative levels of responsibility, the work undertaken, and the fees to be claimed by all. The Relevant Factors The importance of the appeal and its importance to the appellant. 13. A sentence appeal listed in a Court set up to give guidelines on sentencing policy and tariffs would score more highly than one based on the sole ground that insufficient attention had been paid by the Judge to the contents of a Pre Sentence Report. 14. An appeal on behalf of a fraudulent Company Director sentenced to immediate imprisonment and whose Company will fold if he is not released, thereby making 30 employees redundant, would score more highly than one on behalf of a shoplifter with many previous convictions and custodial sentences for theft. The complexity of the case and number of documents prepared/perused 15. An appeal against conviction arising out of a three month trail in which there were numerous rulings by the trial Judge producing many varied grounds, some of legal complexity, and where the complaint is also made about the way in which the extensive defence evidence was summed up, would score more highly than a case certified fit for appeal on the sole basis that an exhibit went before the jury by mistake. The skill, labour, specialised knowledge and responsibility on counsel 2
16. An appeal against convictions for abuse of young children where there have been subsequent family proceedings of some relevance to the appeal, requiring counsel to have an understanding of family law principles as well as his/her own expertise in criminal law, would score more highly than an appeal based on misdirections on the constituent elements of theft in a summing up. (Counsel is expected to be fully up to date in the substantive and procedural law, in which he/she practices. Perry & Another v Lord Chancellor 1994). 17. An appeal by counsel who had not appeared in the court below scores more highly on responsibility and workload as counsel will have no prior knowledge of the events at the trial. Irrespective of whether counsel has appeared below, it is wrong to take the Crown Court fee as a starting point for the Appeal Court fee. A six month trial may lead to an appeal against one ruling only. A two week trial may lead to a host of complex appeal issues. 18. Media interest does affect the responsibility upon counsel and should be taken into account. The time expended 19. Preparation time plays a part in the assessment but is not the sole basis of the fee. If it was it would reward the slow and penalise the quick. Time taken into account is for work reasonably done, hence the importance of a case assessment setting out and justifying time spent on the various items of work. Guide to the Process of Redetermination and Appeal of Basic Fees in the Court of Appeal, Criminal Division 20. The following is a summary of the procedure only. For further detail refer to: a. Legal Aid in Criminal and Care Proceedings (Cost) Regulations 1989 (S. 14-17) b. Practice Direction (No 5 of 1994) Appeals to taxing master, and c. Archbold - Criminal Pleading Evidence and Practice 21. The procedure is essentially the same as that to be followed when seeking redetermination and appeal of fees following a Crown Court hearing (Costs Regulations 14(1)(a)). (1) Within 21 days of receipt or notification of costs payable, counsel should personally sign a written notice specifying matters in respect of which the application is made, the grounds of objection and whether counsel intends to appear. The notification should be accompanied by the documents and information supplied with the original claim and any further items requested 3
(Regulations 14 (2)(5)). (2) Following the redetermination decision counsel may apply within 21 days for written reasons (Regulation 14 (7)(8)). (3) An appeal rests thereafter to a Costs Judge within 21 days of receipt of the written reasons (Cost Regulation 15). 22. The notice of appeal shall be in the form as the Chief Costs Judge directs, but should specify each item appealed against showing amount claimed, determined and amount in dispute for each item and ground of objection. Further it should state whether counsel will appear or wishes to be represented. 23. The notice should be accompanied by a copy of the written representation on application for redetermination, the determining officers written reasons and all documents previously supplied. 24. Thereafter the Costs Judge shall notify counsel of the hearing date and any other directions. Unless otherwise directed no other evidence shall be raised at the hearing nor objection taken which was not raised at redetermination. 25. Costs may be awarded where the appeal is allowed. (4) An appeal rests thereafter to the single judge providing the Costs Judge certifies a point of principle of general importance (Costs Regulation 16). An application for such a point must be made within 21 days of the taxing master notification to the counsel of the outcome of the appeal. The refusal by a Costs Judge to so certify a point is not susceptible to judicial review. Guide to the Determination and Appeal of Counsel s Legal Aid Taxations in the House of Lords 26. The Legal Aid in Criminal and Care Proceeding (Costs) Regulations 1989 and Costs in Criminal Cases (General) Regulations 1986 have no application in the House of Lords (Cost Regulation 18). 27. The taxing officer is the Principal Clerk of the Judicial Office. Bills should be lodged within 3 months from the date of judgement or from the date on which the petition before an Appeal Committee was disposed by the House. The 3 month rule is strictly adhered to and no bill may be lodged for taxation beyond that period unless an extension has been sought within the period. 28. Though the aforementioned regulations do not apply, the principles followed by the Court of Appeal do and therefore allow for such fee in respect of such would as [it] considers reasonable in such amount as appears to it to be reasonable remuneration for such work. 4
What is and what is not reasonable? 29. Following the Report of the Appeal Committee of the House of Lords upon a reference thereto by the Clerk of the Parliament regarding criminal legal aid taxation [1999] 1 Cr. App. R. 241 on July 27th 1999, the House of Lords announced an amendment to the forms of bills of costs applicable to judicial taxation. 30. The effect was that in conducting the taxation of bills in criminal appeals taxing officers would have regard to; a. the fees charged and allowed in the lower courts; b. the amounts received by counsel for the prosecution in the House of Lords and in the courts below; c. the fees that might have been payable in accordance with the graduated fee system. These may provide a general indication of the range of the appropriate fees. 31. The fact that the proceedings are in the House of Lords provides no basis for an increase in fee save to the extent that extra preparation may have been undertaken. The use of hours worked multiplied by an hourly rate will seldom be helpful for only time reasonably expended is to be remunerated. 32. [See also Direction for the Taxation of Bills of Costs in the House of Lords (1997) and Forms of Bills of Costs in the House of Lords, both available from the Judicial Office of the House of Lords. See also Archbold.] Appeal Review of Taxation in the House of Lords 33. Direction 10 related to a review of the taxation. An appeal lies on principle, but not on quantum and such an appeal must be made within 14 days of taxation. 34. A copy of the review procedure is available on request from the Taxing Clerk. 5