The Secretary of State for Justice the Lord Chancellor v SVS Solicitors

Only evidence and exhibits which have been served as part of the prosecution case may be counted as pages of prosecution evidence (PPE) under the graduated-fee scheme. Material disclosed solely as unused material cannot become PPE merely because it assists the defence.

Service need not always comply with every formality. A determining officer or Costs Judge must decide the material’s true status on the facts. Where electronic material was in fact served, paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 gives a discretion whether to include it as PPE. That discretion does not arise for material which was not served.

SVS Solicitors represented an acquitted defendant in a Crown Court money-laundering trial under a representation order. It claimed graduated fees which included electronic telephone-download material as PPE. The Legal Aid Agency treated the material as unused disclosure and disallowed it.

A Costs Judge allowed SVS’s appeal, holding that the electronic material had been served and should be included as PPE. The Lord Chancellor appealed to the High Court. Fresh evidence established that 309 of the claimed pages duplicated material already supplied, leaving 1,262 disputed pages. The central issue was whether those pages were served prosecution material or unused material, and, if served, whether they should be included in the PPE count.

1. The appeal was allowed only in part. The Costs Judge’s conclusion that the disputed electronic material was served prosecution material and should be included as PPE was upheld. The count was varied from 1,571 to 1,262 pages because SVS accepted that 309 pages duplicated material previously supplied.

2. Under paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, only served evidence and exhibits can be PPE. Material disclosed only as unused material cannot be PPE, even if important to the defence. Evidence may nevertheless be served although the prosecution does not rely on every part of it.

3. The statutory reference to served prosecution documents does not impose an exhaustive requirement of formal service, a notice of additional evidence, or service on the court. Compliance with those formalities is strongly preferable and usually provides clear proof of status. Their absence does not itself prevent material from being PPE if it was in fact served as evidence or an exhibit.

4. Where the prosecution serves only part of data from a source, the question whether the remaining data should also have been exhibited is fact-specific. Fairness may require the complete data to be available so that an extracted schedule can be checked in context. If the status has not been resolved at trial, the determining officer or Costs Judge must decide it from the available material. The prosecution’s initial classification is highly important, but not invariably decisive.

5. Paragraph 1(5) confers a discretion only where an electronically served exhibit has never existed in paper form. The decision-maker may then consider its nature and all relevant circumstances. On the information available, the Costs Judge was entitled to find that the material had been served and to exercise that discretion in favour of inclusion.

6. The court admitted the Lord Chancellor’s late fresh evidence under rule 52.21(2) of the Civil Procedure Rules 1998. Although it could have been obtained earlier, it was credible, potentially influential, caused no identified prejudice, and admission was required by the overriding objective.

• High Court (Queen's Bench Division): allowed the Lord Chancellor’s appeal only to vary the number of electronic PPE pages from 1,571 to 1,262.
• Costs Judge: on 28 November 2016, allowed SVS’s appeal from the Legal Aid Agency determining officer and held that the electronic material should be included as PPE.
• Legal Aid Agency determining officer: disallowed the claimed electronic material on the basis that it was unused material rather than formally served evidence.