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

Only prosecution material served as evidence or exhibits counts as pages of prosecution evidence under the graduated fee scheme. Formal service, including service on the court, is not an absolute prerequisite. Material may qualify although the prosecution does not rely on every part of it. Reliance on selected electronic data may require service of underlying data to provide a fair context.

Where status remains unresolved, the Determining Officer or Costs Judge must assess whether the material was in fact served. The prosecution's classification is important but not conclusive. Central importance to the trial may justify inclusion; importance to the defence alone is insufficient. For served electronic exhibits which have never existed on paper, inclusion depends on a separate statutory discretion. That discretion cannot convert unserved unused material into prosecution evidence.

SVS Solicitors represented Ms D under a representation order in a Crown Court money laundering trial. The prosecution relied on telephone downloads and schedules extracted from them. It initially classified excluded portions of two downloads, containing Facebook and Viber messages, as unused material and subsequently disclosed them. The solicitors maintained that the complete data were central to testing the prosecution's schedules and preparing the defence. Ms D was acquitted.

A Legal Aid Agency Determining Officer excluded 1,571 electronic pages from the solicitors' graduated fee claim. Costs Judge Simons allowed their appeal, finding that the material was a served prosecution exhibit and exercising his discretion to include it in the pages of prosecution evidence. The Lord Chancellor appealed to the High Court, challenging both the finding of service and the availability of that discretion.

Fresh evidence clarified the contents of two discs and revealed duplication. The solicitors conceded that their additional claim should be reduced to 1,262 pages. The principal issue was whether the remaining material qualified as served prosecution evidence despite its initial classification and the absence of formal service.

1. The appeal was allowed only to correct a conceded error of 309 pages. The challenge to the inclusion of the remaining electronic material failed.

2. Only served evidence and exhibits could count as pages of prosecution evidence. Material disclosed solely as unused material was excluded, however helpful it was to the defence. Paragraph 1(3) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 did not make compliance with the formalities of service an exhaustive condition. Informal service could suffice, and service on the court was evidence of service on the defendant rather than a separate prerequisite (paras 50(i)–(vi), 50(xi)).

3. Served evidence was not confined to material on which the prosecution specifically relied. Although proper subdivision of an exhibit was possible, selected data might require the underlying material to be exhibited so that the selection could fairly be understood in context. The defence's task could include checking omissions as well as accuracy. The contextual reasoning in Furniss and others [2015] 1 Costs LR 151 and Lord Chancellor v Edward Hayes LLP and Nick Wrack [2017] EWHC 138 (QB) was endorsed. Any blanket approach suggested by Furniss was rejected conditionally, the judge being unsure that it had suggested one (paras 44–48).

4. Parties should ordinarily agree what material required service. Exceptionally, a trial judge could exercise case-management powers to require underlying material to be exhibited or require the prosecution to proceed without the extracted material. Section 78 of the Police and Criminal Evidence Act 1984 also permitted exclusion on fairness grounds. Routine applications for such rulings were undesirable (paras 49, 50(vii)).

5. Unresolved status had to be determined from all available information. The prosecution's initial classification was important and often decisive, but central importance to the trial could justify a finding of service despite absent formalities. Failure to obtain agreement or a trial ruling could strongly support the initial classification. Here the Costs Judge was entitled to find service: the fresh evidence did not adequately explain the different treatment of two downloads or establish how the disputed material was actually used at trial (paras 50(viii), 51(i)–(iii)).

6. Once service was established, paragraph 1(5) conferred a separate discretion concerning qualifying electronic exhibits. The Costs Judge was entitled to include this material. Served electronic exhibits excluded through that discretion might attract special preparation fees within the limited circumstances of paragraph 20; unserved unused material could not enter the PPE count through paragraph 1(5) (paras 50(ix)–(xi), 51(iv)).

7. The fresh evidence was admitted under the overriding objective despite its earlier availability, given its credibility, importance and absence of particular prejudice. Future evidence should be produced promptly, since prejudicial delay could justify refusal or a costs sanction. PPE status should wherever possible be resolved and recorded at trial. The decision was varied to include 1,262 additional electronic pages instead of 1,571 (paras 29–31, 52–53).

1. High Court (Queen's Bench Division): On 11 May 2017, in [2017] EWHC 1045 (QB) , Holroyde J allowed the Lord Chancellor's appeal only to reduce the additional electronic pages from 1,571 to 1,262. He otherwise upheld the Costs Judge's decision.
2. Costs Judge: On 28 November 2016, Costs Judge Simons allowed the solicitors' appeal and included 1,571 electronic pages in the PPE calculation.
3. Legal Aid Agency: On 19 July 2016, following requests for review, the Determining Officer's exclusion of the electronic material as unused material was maintained.