Lord Chancellor v Rees & Ors

When assessing criminal defence counsel’s ex post facto fees under the Criminal Defence Service (Funding) Order 2001, the determining officer must allow a reasonable amount for work actually and reasonably done, having regard to all relevant circumstances. Fees under the VHCC scheme, prosecution fees and graduated fees may be used as cross-checks, but only with care and never as automatic tariffs. Their relevance depends on the circumstances and comparability of the case. Privately funded fees are not an appropriate comparator. Counsel may be remunerated for work done on the case, including the commitment involved in preparing for and attending the trial, but lost professional opportunities cannot be claimed as a separate head of remuneration. The appeals were allowed and the assessments remitted.

The Lord Chancellor appealed against decisions of Costs Judge Rogers dated 28 January 2008 concerning the basic fees allowed to fifteen publicly funded defence counsel. The respondents had acted in unusually lengthy and complex criminal proceedings arising from a large VAT fraud. Their fees were subject to retrospective assessment under the Criminal Defence Service (Funding) Order 2001.

The Costs Judge had rejected or substantially limited the use of the House of Lords Report on criminal legal aid taxation, VHCC rates, prosecution fees and graduated fees as cross-checks. He had also accepted that disruption to counsel’s professional practice could be relevant. The central issues were the proper approach to reasonable remuneration, the permissible comparators, and the treatment of lost work.

1. Appeal allowed. All assessments were remitted to a Costs Judge for determination of the appropriate fees.
2. Under Schedule 1 to the Criminal Defence Service (Funding) Order 2001, the determining officer must consider all relevant circumstances and allow a reasonable amount for work actually and reasonably done. The factors in the Taxing Officer’s Notes for Guidance 2002 include the importance, complexity and difficulty of the case, the skill and responsibility involved, the documents, time spent and other relevant circumstances.
3. It is legitimate in principle to use comparators as cross-checks. The House of Lords Report was not confined to appeals heard by the House of Lords and had not been overtaken by subsequent events. It supported the use of graduated fees, VHCC rates and prosecution fees as indications of reasonable remuneration, while providing no complete answer.
4. VHCC rates could be relevant because the proceedings were of the type capable of falling within that scheme. Prosecution fees could also be relevant, although differences between prosecution and defence work, multi-handed trials and the basis on which prosecution fees were calculated required care. Graduated fees were potentially useful but often of limited value in complex and lengthy fraud cases. The comparator remained only a cross-check, and could be disregarded where inappropriate or misleading.
5. Privately funded fees were not a legitimate comparator. They were market-driven and negotiated, whereas publicly funded work was regulated and subject to statutory requirements concerning public expenditure and value for money.
6. Applying Loveday v Renton (No.2) [1992] 3 All ER 184, the fee could reflect the commitment of time required for preparation and trial, but could not include a separate sum for lost opportunities or other work which counsel might otherwise have undertaken. The wording of Schedule 1 confined the assessment to work actually and reasonably done in the case.
7. The proposed use of cross-checks did not amount to a change of policy engaging legitimate expectation. The Costs Judge had erred by refusing to consider the permissible comparators, so each assessment required reconsideration.

1. High Court (Queen’s Bench Division): appeals from decisions of Costs Judge Rogers dated 28 January 2008 were allowed. All assessments were remitted to a Costs Judge.