Atkins v The Lord Chancellor

The graduated fee scheme under the Criminal Defence Service (Funding) Order 2007 is formulaic. Entitlement must be found in the Order and Schedule 2, rather than assessed by reference to the solicitor’s actual time or the fairness of the result. Electronic evidence such as moving CCTV footage is excluded from the definition of prosecution pages. The special preparation fee applies only to documentary material falling within that definition and served electronically. The High Court’s appellate powers under Article 30(8) do not create an independent jurisdiction to award payment outside the Order. A case’s mistaken refusal of very high cost case classification does not itself alter the Schedule 2 fee entitlement.

Maclaverty Cooper Atkins, a criminal defence firm, appealed from Costs Judge Simons concerning payment for extensive work reviewing CCTV evidence in a murder prosecution. The Legal Services Commission had refused to classify the case as a very high cost case and later rejected a claim for additional payment for approximately 869 hours spent analysing electronic CCTV material.

The Costs Judge concluded that the case should have been classified as a very high cost case but dismissed the fee appeal, considering himself constrained by The Lord Chancellor v Michael J Reed Ltd [2009] EWHC 2981 (QB). The central issue was whether Schedule 2 to the Criminal Defence Service (Funding) Order 2007 permitted an additional fee for that work.

1. Appeal dismissed. The fee entitlement was governed by the wording of the Criminal Defence Service (Funding) Order 2007 and Schedule 2. Article 6 required claims to be determined under Schedule 2. The scheme was deliberately formulaic and was based principally on the offence category, trial length and pages of prosecution evidence, rather than the time actually spent.

2. Paragraph 1(2) of Schedule 2 expressly excluded documents provided on CD-ROM or by electronic communication from the calculation of prosecution pages. Paragraph 15 created a limited exception for prosecution evidence, as defined in paragraph 1(2), served in electronic form only. It did not extend to moving CCTV footage merely because the material was important or required substantial preparation. The court followed the reasoning of The Lord Chancellor v Michael J Reed Ltd [2009] EWHC 2981 (QB), as endorsed in The Lord Chancellor v McLarty and Co Solicitors [2011] 3182 (QB), and was fortified by Goodman and Farr v Secretary of State for Constitutional Affairs (2007) 3 Costs LR 366.

3. The fact that the case should have been classified as a very high cost case did not alter the Schedule 2 entitlement. The refusal had been based on unsustainable reasons, but very high cost case status and its consequences were addressed separately in the Order.

4. Article 30(8) did not confer a free-standing power to grant relief considered just or fair outside the Order. It permitted the High Court to implement the Order, including by making an interim payment order if the statutory scheme otherwise allowed it.

5. The court observed that Parliament may not have contemplated the exceptional combination of prosecutorial failures, late disclosure and extensive necessary CCTV work. It invited the Lord Chancellor to consider appropriate recompense, potentially on an ex gratia basis.

• High Court (Queen’s Bench Division): appeal from the decision of Costs Judge Simons was dismissed.