Lord Chancellor v Purnell & Anor

An appeal under paragraph 22(5) of the Criminal Defence Service (Funding) Order 2001 is limited by CPR 52 to a review of the lower court’s decision. It may succeed only where that decision was wrong, including outside the range of reasonable discretion.

For a cracked trial fee, the court must apply the statutory definition in Schedule 2, Part 3, paragraph 9. Where a jury is discharged and the prosecution later offers no evidence, the definition may be satisfied if the case was listed for trial and the prosecution had not declared before or at the plea and case management hearing that it would not proceed. Guidance may illuminate recurring applications but cannot add a gloss to binding statutory language.

The Lord Chancellor appealed against a decision of Costs Judge Campbell dated 28 May 2009. The Costs Judge had allowed the respondents’ further appeal and held that their claims for cracked trial fees were payable.

The respondents had represented a young defendant in a multi-defendant murder trial. After the jury failed to agree on a manslaughter count, a retrial was pencilled in and the respondents undertook further preparation. The prosecution subsequently offered no further evidence. The central issues were whether the statutory definition of a cracked trial applied and whether the Costs Judge’s decision was wrong on review.

1. Appeal dismissed. Under CPR 52.11, the appeal was limited to a review of the Costs Judge’s decision. The question was whether that decision was wrong. The Costs Judge had more factual material than the Determining Officer and had exercised a reasonable discretion on the law and facts. His decision was not outside the permissible ambit of judgment.

2. The governing law was Schedule 2, Part 3, paragraph 9 of the Criminal Defence Service (Funding) Order 2001. Whether paragraph 9(3) or paragraph 9(4) applied, the statutory definition was capable of covering a case in which the defendants maintained not guilty pleas, the matter had been listed for trial, and the prosecution later offered no evidence.

3. The reported decisions relied on by the appellant did not displace the statutory wording. R v Mohammed and Lord Chancellor v Frieze were factually different. R v Pelepenko had superficial factual similarity, but the court expressed doubt about the power to add a gloss to paragraph 9(3) based on whether preparation for a further trial was objectively necessary.

4. The respondents had genuine reason to expect and prepare for a retrial. The seriousness of the case, the unresolved manslaughter count and the proposed retrial listing supported that conclusion. The later Graduated Fee Scheme Guidance could illuminate the recurring problem and regulate the amount payable, but it was not a source of law and did not govern these claims.

5. The respondents were awarded the costs of the appeal: £2,200 plus VAT to the first respondent and £1,000 plus VAT to the second respondent.

• High Court (Queen’s Bench Division): The appeal from Costs Judge Campbell’s decision of 28 May 2009 was dismissed. The Costs Judge’s decision was not shown to be wrong.