K & Ors, R v

A representation order for an appeal covers only work on grounds for which leave to appeal has been granted. It does not cover a renewed application for leave which fails, unless the court exceptionally orders otherwise. Fee claims must therefore separate appeal work from work on an unsuccessful renewed application.

The grant of leave does not prevent a recovery of defence costs order after an unsuccessful appeal. In the absence of exceptional public-interest reasons, an appellant with available capital may be required to contribute to the publicly funded cost of the failed appeal.

The Court of Appeal had dismissed the appeals of K, G and M on 2 November 2004. It had reserved a short hearing on costs.

This judgment addressed the appellants’ representation orders, the failure of K and G to lodge means forms, and whether recovery of defence costs orders should be made. The court also considered the proper treatment of fees where a renewed application for leave to appeal was pursued alongside an appeal.

1. The appeals had already been dismissed. The court dealt with the consequential question of recovery of defence costs and the scope of public funding for the proceedings.
2. A representation order made for an appeal covers work and attendance concerning the grounds for which leave to appeal has been granted. It does not cover work on a renewed application for leave that fails, unless the court makes a special and exceptional order. Fee notes must identify separately the work done on the appeal and on the unsuccessful renewed application, so that no payment under the representation order is made for the latter.
3. The fact that leave to appeal was granted did not make a recovery of defence costs order inappropriate. The appellants chose to pursue appeals which failed, and there was no exceptional public-interest reason why the taxpayer should bear the resulting defence costs.
4. For K, the court considered that a contribution could be made from residential equity exceeding £100,000, but reserved the amount pending assessment of appeal fees and evidence of fees actually paid for the renewed application. For G, the court required further investigation by the Legal Services Commission because the means information was insufficient, and reserved the recovery order issue. For M, whose home equity was £205,000, the court considered that he should contribute to the cost of his failed appeal, with the amount reserved pending fee assessment and evidence of renewed-application fees.
5. The court also indicated that, where means forms remain unlodged shortly before a hearing, the matter should be listed before the Registrar, who may consider revoking the representation order.

• Court of Appeal (Criminal Division): The appeals from Southwark Crown Court were dismissed on 2 November 2004. This subsequent judgment determined the applicable costs principles and reserved the precise recovery orders pending further information.