Brewer v Secretary of State for Justice

A defendant’s costs order may, in principle, compensate a successful defendant for substantial expenses incurred on professional services, including legal services. Such expenses are not excluded merely because the defendant was represented under a representation order or because the expense was substantial. Recovery depends on the statutory requirements that the expense was properly incurred in the proceedings and that the work or disbursement was actually and reasonably undertaken or incurred. The determining officer must consider all relevant circumstances, including duplication, necessity, qualifications, charging basis and the relationship with the publicly funded legal team. The phrase “out-of-pocket expenses” does not restrict recovery to modest items such as fares and subsistence.

The appellant had been acquitted after a criminal trial and obtained a defendant’s costs order under the Prosecution of Offences Act 1985. He sought reimbursement from central funds for fees and expenses paid to an American attorney who had assisted with matters connected with the prosecution, including during the period covered by a representation order.

A Costs Judge allowed a limited sum for pre-certificate work but rejected the post-certificate claim. He relied on the restriction in the Criminal Defence Service (General No 2) Regulations 2001 and concluded that “out-of-pocket expenses” did not include a second set of legal fees. The appeal concerned whether professional expenses could be recoverable and whether they were limited by that phrase.

1. Appeal allowed and claim remitted. The decision of the Costs Judge concerning the attorney’s fees and expenses was set aside. The claim was remitted to the Senior Costs Judge to nominate a Costs Judge for a fresh determination under the statute and regulations.
2. Regulation 22 of the Criminal Defence Service (General No 2) Regulations 2001 had no direct application. It governed payments received or participated in by a solicitor or advocate acting under a representation order. The attorney was neither, and had not been instructed by the publicly funded solicitors. Goulden v Wilson Barca (a firm) therefore had no direct application to this claim.
3. Under section 16 of the Prosecution of Offences Act 1985 and regulation 7 of the Costs in Criminal Cases (General) Regulations 1986, professional expenses may qualify if properly incurred in the proceedings and related to work actually and reasonably done or disbursements actually and reasonably incurred. The determining officer must consider all relevant circumstances and resolve doubts about reasonableness against the applicant.
4. The relevant circumstances may include the provider’s qualifications and capacity, the nature and purpose of the services, their necessity, why the publicly funded team could not provide them, why they were not claimed under the representation order, the charging basis, duplication or overlap, what was said when the costs order was sought, and any delay in submitting the claim.
5. “Out-of-pocket expenses” are not confined by amount or to fares and subsistence. Fees for professional services may fall within the phrase. A claim for a second set of representation costs may nevertheless fail on other grounds, including duplication, lack of necessity or failure to satisfy the statutory and regulatory requirements.
6. Advocates seeking a defendant’s costs order should identify anticipated heads of claim and, where possible, indicate their approximate amount, particularly where a substantial or unusual claim is expected. This enables the trial judge to consider the powers under sections 16(6) and 16(7) of the Prosecution of Offences Act 1985.

• High Court (Queen’s Bench Division): Allowed the appeal and remitted the claim for a fresh assessment by a different Costs Judge.
• Costs Judge: Allowed £20,700 for pre-certificate work but rejected the claim for post-certificate professional fees and expenses.
• Divisional Court: Earlier proceedings concerning the same costs dispute had quashed the prior assessment and remitted the matter for reconsideration.