The Lord Chancellor v McLarty And Co Solicitors

Under the Criminal Defence Service (Funding) Order 2007, a special preparation fee is available only for documentary prosecution material served electronically. It does not extend to audio or video recordings merely because their contents could be transcribed or converted into pages. The statutory scheme does not confer a general discretion to remunerate work undertaken on electronic evidence.

Nor may a special preparation fee be enhanced under the provisions governing hourly fees for confiscation proceedings. The prescribed rates following paragraph 22 are the maximum applicable rates.

McLarty and Co represented two defendants in a multi-handed drugs trial involving extensive covert audio recordings. The Crown served transcripts of some recordings and the complete audio material electronically. The solicitors claimed a special preparation fee for listening to the untranscribed recordings.

The Legal Services Commission rejected the claim. Costs Judge Campbell allowed it and enhanced the fee by 100 per cent. The Lord Chancellor appealed under article 31(5) of the Criminal Defence Service (Funding) Order 2007. The issues were whether the recordings fell within paragraph 15 of Schedule 2 and whether a fee payable under that paragraph could be enhanced.

1. Appeal allowed. The Costs Judge’s decision to award a special preparation fee was contrary to the Criminal Defence Service (Funding) Order 2007.
2. Paragraph 1(2) of Schedule 2 defines pages of prosecution evidence by reference to documents and pages. Paragraph 15 is confined to documentary material served electronically. It does not create a general power to remunerate time spent dealing with any electronic evidence.
3. The reasoning of Penry-Davey J in Lord Chancellor v Michael J Reed Ltd [2010] 1 Costs LR 72 was unassailable and was endorsed. A recording of speech does not become a document merely because it could be transcribed. Audio and video recordings are outside paragraphs 1(2) and 15 unless the material served electronically is documentary material with an identifiable page count.
4. The consultation material reinforced the conclusion reached from the statutory language. It showed that additional payment for considering taped material had been excluded.
5. The alternative enhancement issue was also determined. Paragraph 24 concerns fees arising under paragraph 21 for confiscation and similar proceedings. It does not apply to a special preparation fee under paragraph 15. The prescribed rates in the table following paragraph 22 therefore cannot be enhanced under paragraph 24, nor reduced under paragraph 23. The contrary conclusion in R v Browne SCCO Ref: 11/10 was rejected, and the approach in R v Brandon SCCO Ref: 07/11 was accepted.

• High Court (Queen’s Bench Division): allowed the Lord Chancellor’s appeal from the decision of Costs Judge Campbell dated 1 June 2010.
• Costs Judge Campbell: allowed McLarty and Co’s appeal against the Legal Services Commission’s refusal of the special preparation claim and awarded an enhanced fee.