Goodman & Anor v Secretary of State for Constitutional Affairs

The graduated fees scheme is intended to operate mechanically and formulaically. The number of pages of prosecution evidence is a rough measure of case weight, not a refined assessment of the work actually performed. Real evidence, including physical items such as DVDs, does not become a page of documentary or pictorial evidence merely because it bears writing or images. It may be counted where the prosecution creates and serves pages, such as photographs or copies of photographs of the item. Where the scheme provides for payment, the determining officer has no additional discretion to reduce the prescribed fee on grounds of general unfairness.

The appellants, defence advocates, claimed graduated fees for representing an assisted person in a ten-day Crown Court trial. Their claim treated thousands of DVDs and accompanying inlays as individual pages of prosecution evidence under para. 1(2) of Schedule IV to the Criminal Defence (Funding) Order 2001 No.855.

The determining officer allowed only 1,956 pages. Master Rogers dismissed the appellants’ appeal. The certified issue concerned the construction of the statutory definition of pages of prosecution evidence, including whether the DVDs and inlays were pictorial exhibits and whether any discretion existed to adjust the fee.

1. Appeal dismissed. The DVDs and inlays were not pages of prosecution evidence for the purposes of the graduated fee scheme.
2. The phrase “number of pages of prosecution evidence” in Schedule IV operates as a rough and ready measure of the weight of a case. The scheme necessarily produces swings and roundabouts, and the court must apply its mechanistic and formulaic structure even where the result appears unfair in an individual case. The approach was supported by Secretary of State for Constitutional Affairs v Stork [2006] 1 Costs Law Reports 69.
3. The DVDs and inlays were real evidence. A physical item does not become a served documentary or pictorial exhibit because it contains writing or pictures. It may fall within the page count if the prosecution photographs it, copies the photographs and serves those pages. No such pages had been created for the DVDs or inlays.
4. There is no super-added discretion under Schedule IV enabling the appropriate officer or costs judge to refuse or reduce a fee otherwise required by the wording of the scheme on grounds of general unfairness. Questions concerning a further discretion and any requirement that counsel confirm examination of every page therefore did not arise.
5. The respondent’s application for indemnity costs was refused. Each side was ordered to bear its own costs.

1. High Court (Queen's Bench Division): appeal under para. 22(3) of Schedule I dismissed; each side ordered to bear its own costs.
2. Master Rogers: appeal from the determining officer dismissed on 24 May 2006.
3. Determining officer: allowed 1,956 pages of prosecution evidence and maintained that determination on re-determination.