Schwartz v Highbury Corner Magistrates' Court

When assessing costs payable from central funds, a solicitor’s reasonable composite hourly rate may ordinarily include travel and waiting time. A reduction is justified only to the extent that the rate contains an enhanced uplift reflecting matters such as complexity, importance or difficulty. Guidance for determining officers must be read consistently with that principle. Where contradictory guidance leads the determining officer to deduct the ordinary care-and-conduct element from an otherwise reasonable composite rate, the officer misdirects herself in law.

The claimant was acquitted after proceedings in the magistrates’ court and obtained a defendant’s costs order under the Prosecution of Offences Act 1985. The determining officer allowed £200 per hour for preparation and advocacy but reduced the rate for travel and waiting to £135 per hour, relying on guidance concerning composite rates.

The claimant sought judicial review, arguing that the reduction was inconsistent with R(Hale) v the North Sefton Justices and Villiers. The central issue was whether the composite rate properly included an enhancement which had to be deducted from travel and waiting time.

1. The claim succeeded. The determining officer’s decision of 3 June 2008 was quashed. A mandatory order was made requiring the claimant’s composite, non-reduced hourly rate to be allowed for travelling and waiting.

2. Section 16 of the Prosecution of Offences Act 1985 requires compensation for expenses properly incurred, subject to the statutory test of reasonable sufficiency. Regulation 7 of the Costs in Criminal Cases (General) Regulations 1986 requires the appropriate authority to allow costs for work actually and reasonably done, taking account of all relevant circumstances, including the nature, importance, complexity, difficulty and time involved.

3. The court considered the guidance issued by the Justices’ Clerks’ Society to be contradictory. One passage suggested that the care-and-conduct element should generally be deducted from a composite rate for travel and waiting. The separate passage headed “The composite hourly rate” correctly indicated that deduction was appropriate only where the composite rate included an enhanced uplift.

4. The latter approach more accurately reflected the judicial authorities and the developing practice of charging a single composite rate for preparation, attendance, advocacy, travel and waiting. The £200 rate had been treated as a normal rate, not an enhanced rate. The determining officer had therefore been misled by the contradictory guidance, misdirected herself and erred in law.

5. The court also made a defendant’s costs order in the judicial review proceedings, to be taxed in the usual way.

The judgment does not state a prior appellate decision in this dispute. The proceedings were a judicial review of the determining officer’s decision at Highbury Corner Magistrates’ Court.