Lord Chancellor v Eddowes Perry and Osbourne Ltd

Under the Litigators’ Graduated Fee Scheme, where one litigator represents multiple defendants tried on a single indictment, the remuneration is calculated by reference to one basic fee, increased by the prescribed defendant uplift. Administrative case numbers allocated by the Crown Court do not determine the number of cases for payment purposes. The Scheme in Schedule 2 to the Criminal Defence Service (Funding) Order 2007 is the governing source of law. Guidance issued by the Legal Services Commission cannot alter its proper construction. Any overpayment may be recouped under article 26, including an overpayment caused by the Commission’s own error.

The Lord Chancellor appealed from a decision of Costs Judge Simons allowing Eddowes Perry and Osbourne Ltd’s challenge to the recoupment of fees paid under the Litigators’ Graduated Fee Scheme.

The firm had represented seven defendants tried together on one indictment. The defendants had been allocated four Crown Court case numbers for administrative reasons. The Legal Services Commission initially paid four claims, but later determined that only one basic fee, with an uplift for seven defendants, was payable.

The central issues were whether the case numbers determined the number of payable cases, whether the recoupment and appeal procedure was available, and whether the Commission’s guidance affected the statutory interpretation.

1. Appeal allowed. The decision of Costs Judge Simons was quashed insofar as it prevented recoupment. The order for costs below remained in place, and there was no order for costs on the appeal.
2. The appeal was governed by the ordinary civil appellate test. The appellant had to show that the Costs Judge was plainly wrong and had exceeded the generous ambit within which reasonable disagreement was possible. The court adopted the guidance in Lord Chancellor v Rees [2008] EWHC 3168 (QB).
3. On the proper construction of paragraph 1(1) of Schedule 2, the focus was on the machinery by which Crown Court proceedings were initiated or determined, particularly a single indictment. A single indictment involving multiple defendants constituted one case for the purpose of the Litigators’ Graduated Fee Scheme.
4. Paragraph 9 provided for only one defendant uplift in each case. Treating each defendant, or each administrative case number, as a separate case would make the uplift provisions redundant or produce an irrational result. The correct calculation was one basic fee, enhanced by the applicable proxies, plus the uplift determined by the total number of defendants represented.
5. Crown Court “T” numbers were administrative and could be allocated randomly. They had no statutory basis and could not determine remuneration. The interpretation was supported by R v Hackett and Kavaliauskas, SCCO Ref: 34/10 and 35/10.
6. The Litigator Graduated Fee Scheme Guidance was not a source of law. The court approved the principle stated in Lord Chancellor v Purnell [2009] EWHC 3158 (QB). Guidance could not supplant the statutory Scheme.
7. The decision to recoup under article 26 involved a redetermination of the fees payable. EPO therefore had rights of review and appeal under articles 29 and 30. Article 26 permitted recoupment where there had been overpayment “for whatever reason”, including an error by the Commission.

• High Court (Queen’s Bench Division): appeal from Costs Judge Simons allowed. The decision preventing recoupment was quashed, while the costs order below remained in force.