Secretary of State for Constitutional Affairs v Stork

Under the Graduated Fee Scheme, remuneration is calculated by applying the statutory formula to the trial of the individual assisted person, not to the entire multi-defendant trial. The variable d must have the same meaning wherever it appears in the formula, including in the calculation of refreshers, length-of-trial uplifts and gradients. The historic system of brief fees and refreshers cannot be used to construe the Scheme because it is a self-contained regime. Work relating to co-defendants is not ignored, since the evidence and witness uplifts reflect that aspect of preparation.

The Secretary of State challenged a decision of Costs Judge Rogers concerning the remuneration payable to Brian Stork, counsel for an accused in a 29-day multi-defendant Crown Court trial. Stork’s client was acquitted after 19 days, but the trial continued against the co-defendants for a further 10 days. The dispute concerned whether the length-of-trial uplift was payable for 28 days, reflecting the whole trial, or for 18 days, reflecting only the period by which the individual defendant’s trial exceeded one day. The Costs Judge preferred Stork’s construction and directed an additional payment.

The central issue was the proper construction of the Criminal Defence Service (Funding) Order 2001 and Schedule 4.

1. The appeal was allowed. The length-of-trial uplift was to be calculated by reference to the trial of the individual assisted person, not the duration of the proceedings against all defendants.
2. The Graduated Fee Scheme was a stand-alone statutory scheme. Its basic fee, refreshers and uplifts were components of an algebraic formula and were conceptually distinct from the historic system of brief fees and refreshers. The historic remuneration system therefore had to be disregarded when construing the Scheme.
3. The definition of “case” as proceedings against one assisted person, together with paragraph 23’s machinery for selecting a principal case, supported calculating remuneration by reference to the individual defendant’s case. Paragraph 23 was not otiose on that construction.
4. The variable d had to bear the same meaning throughout the formula. Because the defendant accepted that refreshers could not be claimed for days beyond the individual defendant’s trial, d had the same limitation when calculating length-of-trial uplifts and the length-of-trial gradient. It could not have a different meaning for different components of the fee.
5. The Scheme’s evidence and witness uplifts reflected the advocate’s need to consider material relating to co-defendants. That consideration did not justify treating the whole multi-defendant proceedings as the individual assisted person’s trial.

• Costs Judge: On 9 December 2004, Costs Judge Rogers allowed an additional payment for the ten days during which the trial continued after the defendant’s client was acquitted.
• High Court (Queen’s Bench Division): The appeal was allowed and the Costs Judge’s construction was rejected.