Patel, R. v

A defence costs order may be revoked where unchallenged evidence establishes that, had the court known the true facts concerning the costs claim, it would not have made the order. A party who procured an interim payment from Central Funds under an order which should never have been made must account for that payment. On the facts, the client and his solicitors were made jointly and severally liable to repay it.

Following a successful criminal appeal, the Court of Appeal made a defence costs order in favour of Mr Patel under section 16(9)(b) of the Prosecution of Offences Act 1985. An interim payment of £500,000 was made from Central Funds to his solicitors, Neumans.

During the subsequent assessment, concerns arose that a retrospective agreement increasing the solicitors’ fees was a sham, that substantial hours had been falsely claimed, and that eight earlier invoices reflecting an agreed cap had not been disclosed. The Registrar investigated. At an earlier hearing, the court directed a fact-finding process concerning whether the defence costs order should be set aside.

The Lord Chancellor then sought revocation, repayment of the interim payment and costs. Neither Mr Patel nor Neumans substantively answered the evidence, and both accepted that the order should be revoked.

1. The court revoked the defence costs order. The Lord Chancellor’s evidence, including the Registrar’s report, had not been answered by either Mr Patel or Neumans. They were consequently not in a position to contest the material facts.

2. The evidence established that the costs bill contained a very large number of falsely claimed hours. It also supported the conclusion that the purported retrospective agreement increasing fees and removing the earlier cap was a sham intended to support a larger claim from Central Funds. The non-disclosure of eight paid invoices and the lack of good faith in the claim were also material.

3. The court was satisfied that, if the true facts had been known, it would not have made the original defence costs order. On the now substantially unchallenged facts, revocation was therefore plainly right.

4. Because the order should never have been made, Mr Patel was required to account for the £500,000 interim payment procured under it. Mr Patel and Neumans were ordered jointly and severally to repay that sum by 23 January 2017.

5. Mr Patel was ordered to pay the Lord Chancellor’s costs, summarily assessed at £15,000 and payable by the same date. The court also directed that the papers be sent to the Director of Public Prosecutions and the relevant solicitors’ regulatory authority for their consideration.

• Court of Appeal (Criminal Division) — In the present decision, [2016] EWCA Crim 2001, the court revoked the defence costs order, ordered repayment of £500,000, and awarded costs to the Lord Chancellor.

• Court of Appeal (Criminal Division) — On 15 June 2016, the court held that its July 2012 decision had not finally determined the costs issue. It further held that exceptional circumstances would in any event justify reopening the issue to avoid real injustice where no alternative remedy existed.

• Court of Appeal (Criminal Division) — On 6 July 2012, the court directed the Registrar of Criminal Appeals to continue the assessment and investigate whether there had been deliberate deception in the costs claim.

• Court of Appeal (Criminal Division) — On 20 January 2010, following Mr Patel’s successful appeal, a defence costs order was made for payment of his costs from Central Funds under section 16(9)(b) of the Prosecution of Offences Act 1985.