Lloyds PR Solicitors v The Lord Chancellor

When assessing prosecution evidence served electronically for criminal legal aid remuneration, the relevant question is not simply whether the material was served. For exhibits that have never existed in paper form, the decision-maker must exercise a fact-specific discretion, considering the nature of the material and all relevant circumstances.

The assessment is qualitative. Material requiring close consideration may count as pages of prosecution evidence, while material that is readily shown to be irrelevant on cursory examination need not. There is no fixed percentage or scale. Material excluded from the page count may instead attract a special preparation fee.

The solicitors represented a defendant in a serious violence trial and appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The dispute concerned whether electronically served telephone downloads, including large image sections, should count as pages of prosecution evidence for the graduated fee.

The Determining Officer allowed 1,543 pages, including 1,245 electronic pages. The solicitors sought a substantially higher allowance, initially claiming 10,000 pages. The central issue was how the statutory discretion should be applied to downloaded material which had never existed in paper form.

1. Appeal allowed in part. A further 96 pages of prosecution evidence were allowed. There was no order as to the costs of the appeal.
2. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, service alone does not determine whether electronic documentary or pictorial exhibits count as prosecution evidence. The decision-maker must consider the nature of the document and any other relevant circumstances. The exercise is qualitative and fact-specific.
3. The authorities and guidance support consideration of factors including the importance and relevance of the material, the work required, the person undertaking it, and whether the evidence required close consideration. There is no set scale or percentage. A broad or approximate assessment may be appropriate where only part of a large electronic exhibit is materially relevant.
4. All served material must be considered, but it does not follow that all such material counts as pages of prosecution evidence. Where a cursory examination makes clear that material is substantially irrelevant, it should not ordinarily be included in the page count. The work involved in reviewing excluded material may instead be remunerated by a special preparation fee under paragraph 20 of Schedule 2.
5. Applying those principles, the allowance for the principal image section was not increased because sampling showed that most material was plainly irrelevant and only a small number of images required more than cursory consideration. Further allowances were appropriate for identified potentially relevant material in another download and for conceded material in a further section.
6. The limited success, the loss on the principal issue, and the late clarification of the grounds justified exercising the costs discretion so that there was no order as to costs.

The appeal was brought to the Senior Courts Costs Office under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s assessment. The appeal succeeded in part, with a further allowance of 96 pages.