The Lord Chancellor v Michael J Reed Ltd

Under the Criminal Defence Service (Funding) Order 2007, moving DVD, video or audio footage served electronically is outside the definition of prosecution evidence used to calculate litigators’ fees. It therefore cannot attract a special preparation fee under paragraph 15 of Schedule 2. The fact that the material is central to the criminal charge, or important for the solicitor to study, does not bring it within that definition. Electronically served material may qualify only where it is a document within paragraph 1(2), such as a still image, and the statutory conditions for a special preparation fee are satisfied.

The Lord Chancellor appealed under article 31(5) of the Criminal Defence Service (Funding) Order 2007 against a Costs Judge’s decision awarding Michael J Reed Ltd a special preparation fee of £25.44. The fee related to a DVD showing the road scene in a dangerous driving prosecution. The respondent took no part in the appeal. The central issue was whether moving DVD footage constituted prosecution evidence within paragraph 1(2) of Schedule 2 and could consequently qualify for a special preparation fee under paragraph 15.

1. Appeal allowed. The award of the £25.44 special preparation fee was set aside.
2. Paragraph 15 of Schedule 2 to the Criminal Defence Service (Funding) Order 2007 incorporates the definition in paragraph 1(2). That definition excludes electronically provided material which is not a document, including DVD, CD-ROM, audio or video footage.
3. The DVD in this case showed moving footage of the accident scene. It was therefore outside the definition of prosecution evidence and outside paragraph 15. It formed part of the basic or initial fee only.
4. The fact that the footage was central to the charge and important for the solicitor to study did not explain how it came within the statutory definition. The Costs Judge’s fact-sensitive reasoning was inconsistent with the clear wording of the Order.
5. The reference to “any document” in paragraph 15 preserves a limited category of electronically served material. In context, that means a still image or comparable document, rather than moving footage which is not intended for, or capable of, conversion into still images.
6. The court was fortified in that construction by Goodman and Farr v Secretary of State for Constitutional Affairs (2007) 3 Costs LR 366, where Walker J held that DVDs and inlays constituting real evidence did not amount to pages of prosecution evidence. The statutory amendments resolved the electronic-document question left open in that decision.
7. There was no order for costs, in accordance with the parties’ agreement.

1. High Court (Queen’s Bench Division): The Lord Chancellor appealed from the Costs Judge’s decision of 23 April 2009. The appeal was allowed and the special preparation fee was set aside.